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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 26 ● ISSUE 14 ● Pages 1005 - 1059
January 17, 2012
I. EXECUTIVE ORDERS
Executive Order No. 112 ................................................................................ 1005
II. IN ADDITION
COPA – Correction to Third Amended COPA ............................................... 1006
III. PROPOSED RULES
Commerce, Department of
Department ...................................................................................................... 1007 – 1015
Justice, Department of
Private Protective Services Board ................................................................... 1015 – 1016
Occupational Licensing Boards and Commissions
Hearing Aid Dealers and Fitters Board ........................................................... 1016 – 1018
Social Work Certification and Licensure Board ............................................. 1018 – 1019
State Personnel, Office of
State Personnel Commission ........................................................................... 1020 – 1027
IV. TEMPORARY RULES
Administrative Hearings, Office of
Administrative Hearings, Office of ................................................................. 1040 – 1042
Environment and Natural Resources, Department of
Environmental Management Commission ...................................................... 1037 – 1039
Wildlife Resources Commission ..................................................................... 1039 – 1040
Health and Human Services, Department of
Health Service Regulation, Division of ........................................................... 1028 – 1037
V. RULES REVIEW COMMISSION ................................................................. 1043 – 1054
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 1055 – 1059
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071
Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075
Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073
Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081
Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079
Fiscal Notes & Economic Analysis and Governor's Review
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919) 807-4740
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Erin L. Wynia ewynia@nclm.org
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net
Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2012 – December 2012
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
26:13 01/03/12 12/08/11 01/18/12 03/05/12 03/20/12 05/01/12 05/16/12 09/29/12
26:14 01/17/12 12/21/11 02/01/12 03/19/12 03/20/12 05/01/12 05/16/12 10/13/12
26:15 02/01/12 01/10/12 02/16/12 04/02/12 04/20/12 06/01/12 01/30/13 10/28/12
26:16 02/15/12 01/25/12 03/01/12 04/16/12 04/20/12 06/01/12 01/30/13 11/11/12
26:17 03/01/12 02/09/12 03/16/12 04/30/12 05/21/12 07/01/12 01/30/13 11/26/12
26:18 03/15/12 02/23/12 03/30/12 05/14/12 05/21/12 07/01/12 01/30/13 12/10/12
26:19 04/02/12 03/12/12 04/17/12 06/01/12 06/20/12 08/01/12 01/30/13 12/28/12
26:20 04/16/12 03/23/12 05/01/12 06/15/12 06/20/12 08/01/12 01/30/13 01/11/13
26:21 05/01/12 04/10/12 05/16/12 07/02/12 07/20/12 09/01/12 01/30/13 01/26/13
26:22 05/15/12 04/24/12 05/30/12 07/16/12 07/20/12 09/01/12 01/30/13 02/09/13
26:23 06/01/12 05/10/12 06/16/12 07/31/12 08/20/12 10/01/12 01/30/13 02/26/13
26:24 06/15/12 05/24/12 06/30/12 08/14/12 08/20/12 10/01/12 01/30/13 03/12/13
27:01 07/02/12 06/11/12 07/17/12 08/31/12 09/20/12 11/01/12 01/30/13 03/29/13
27:02 07/16/12 06/22/12 07/31/12 09/14/12 09/20/12 11/01/12 01/30/13 04/12/13
27:03 08/01/12 07/11/12 08/16/12 10/01/12 10/22/12 12/01/12 01/30/13 04/28/13
27:04 08/15/12 07/25/12 08/30/12 10/15/12 10/22/12 12/01/12 01/30/13 05/12/13
27:05 09/04/12 08/13/12 09/19/12 11/05/12 11/20/12 01/01/13 01/30/13 06/01/13
27:06 09/17/12 08/24/12 10/02/12 11/16/12 11/20/12 01/01/13 01/30/13 06/14/13
27:07 10/01/12 09/10/12 10/16/12 11/30/12 12/20/12 02/01/13 05/2014 06/28/13
27:08 10/15/12 09/24/12 10/30/12 12/14/12 12/20/12 02/01/13 05/2014 07/12/13
27:09 11/01/12 10/11/12 11/16/12 12/31/12 01/22/13 03/01/13 05/2014 07/29/13
27:10 11/15/12 10/24/12 11/30/12 01/14/13 01/22/13 03/01/13 05/2014 08/12/13
27:11 12/03/12 11/07/12 12/18/12 02/01/13 02/20/13 04/01/13 05/2014 08/30/13
27:12 12/17/12 11/26/12 01/01/13 02/15/13 02/20/13 04/01/13 05/2014 09/13/13
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1005
IN ADDITION
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1006
Correction to Third Amended COPA
The Third Amended Certificate of Public Advantage, issued on August 31, 2011, is hereby corrected to remove language that was
inadvertently added. Other than as set forth herein, the provisions of the Third Amended COPA remain in full force and effect.
Provision 8.1, as corrected, is as follows:
8.1 Notwithstanding Section 6.1, Mission Health may employ or enter into exclusive contracts with no more than 30% of the
physicians in its primary service area of Buncombe and Madison Counties, except those practicing in the following areas:
cardiology, genetics, hospitalist, neuro-hospitalist, and neurology. This percentage limit shall apply to each area of practice.
In calculating this percentage, full-time residency faculty members employed by Mission Health shall be included, and
physicians whose primary employment is at Mission Health's community access clinics shall be excluded.
Department of Health and Human Services
Date: January 3, 2012
Drexdal R. Pratt, Director
Division of Health Service Regulation
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1007
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 04 – DEPARTMENT OF COMMERCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Department of Commerce intends to amend the rules cited as
04 NCAC 01I .0101, .0105 and repeal the rules cited as 04
NCAC 01J .0101-.0102, .0201, .0301, .0401, .0501; 01K .0202,
.0204, .0207; 14B .0109-.0116, .0211-.0220; 19L .1301-.1303;
20B .0402-.0403, .0901-.0902, .0904, .0906-.0907, .0909-.0911.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.nccommerce.com/rules
Proposed Effective Date: May 1, 2012
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice): A demand for a
public hearing shall be directed in writing to Tina A. Krasner at
NC Department of Justice, P.O. Box 629, Raleigh, NC 27602-
0629.
Reason for Proposed Action: All of these rules are obsolete.
Procedure by which a person can object to the agency on a
proposed rule: Objections to any of these rules shall be sent in
writing to Tina A. Krasner at NC Department of Justice, P.O.
Box 629, Raleigh, NC 27602-0629.
Comments may be submitted to: Tina A. Krasner, NC
Department of Justice, P.O. Box 629, Raleigh, NC 27602-0629.
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - DEPARTMENTAL RULES
SUBCHAPTER 01I – INDUSTRIAL DEVELOPMENT
FUND
SECTION .0100 – PURPOSE AND DEFINITIONS
04 NCAC 01I .0101 BACKGROUND AND
OBJECTIVES
(a) BASIC—The purpose of the North Carolina Industrial
Development Fund is to assist town, city or county governments
with incentive industrial financing in areas of the state that have
been designated as eligible tier areas by NC General Statutes.
This assistance is intended to help units of government offer to
its new and expanding industry, new or improved infrastructure,
or funds for building renovation and equipment in exchange for
commitments to create new, full-time jobs in industries currently
eligible under NC General Statutes. (The fund is not designed to
be used for the acquisition of land and buildings or constructing
new buildings.) If the assistance is used for infrastructure, it
shall be granted to local governments with no repayment;
however, if it is used to purchase equipment or to renovate
industrial buildings, then the funds must be repaid. But whether
a grant or a loan, the amount of funds to be made available for a
project shall be determined by the number of new jobs
committed, with a maximum job limit and project limit as
currently authorized for the program by NC General Statutes.
(b) EMERGENCY ECONOMIC DEVELOPMENT
ASSISTANCE - This special assistance from the Industrial
Development Fund is available to units of government that have,
or shall imminently experience, a loss of 500 or more
manufacturing jobs in the county, or a number of manufacturing
jobs equal to at least 10% of the manufacturing workforce in the
county. Where a unit of government relies on the 500 jobs loss
as the threshold for obtaining this special assistance, it must
submit convincing evidence that the loss seriously impacts the
county's economy, taking into account the county's tier ranking
under Rule .0701 of this Subchapter. The funding obtainable
under this emergency assistance category shall not necessarily
be determined by the number of new jobs to be created, although
the project should lead to new jobs, or save jobs, or both, and
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1008
help alleviate a jobs dislocation problem. The Secretary shall
determine the amount of funds for a project, up to the maximum
currently authorized for the program by NC General Statutes.
This assistance shall be in the form of a low interest loan to the
governmental unit, amortized over five years with repayment
beginning at the end of the second year.
(c) UTILITY ACCOUNT - Within the IDF structure, the Utility
Account provides financing to units of government for jobs
creation and investment in the tier area(s), and for benefiting
firms currently authorized by NC General Statutes. Funds may
be used for construction or improvements to water, sewer, gas,
or electrical utility lines and equipment for existing or proposed
industrial buildings. There is no specific amount of funding
specified for each new job or project, but the impact of the
funding should lead to the creation of new jobs and new
investment. As with basic IDF financing, if Utility Account
funds are spent for public property, the assistance shall be a
grant; for private property, it shall be a loan.
(d) CLEAN WATER BONDS PROCEEDS - Clean Water
bonds proceeds from the IDF shall be used to make grants to
local government units to pay the cost of clean water projects for
economic development with regard to the locating of industry to,
and the expansion of industry in the State. These funds shall be
administered in the manner permitted in the Basic IDF and the
Utility Account except the following limitations shall apply:
(1) The funds shall be used for grants; not loans.
(2) Grants shall be made only for projects that will
have a favorable impact on the clean water
objectives of the State.
(3) Projects shall be located in economically
distressed counties or those that have a
population of less than 50,000 determined
from the data derived at the time of the last
December ranking of economically distressed
counties.
(4) Grants may be made only with respect to the
industries specified by the Clean Water and
Natural Gas Critical Needs Bond Act of 1998
as amended.
(5) The water or sewer utility lines or facilities for
which bond funds are disbursed shall not
necessarily be located on the site of a building
or proposed building at which an industrial
activity occurs if the utility lines or facilities
will further the clean water objectives of the
State.
Authority G.S. 143B-437.01.
SUBCHAPTER 01J - NORTH CAROLINA JOBS TAX
CREDIT
SECTION .0100 - PURPOSE AND DEFINITIONS
04 NCAC 01J .0101 BACKGROUND AND
OBJECTIVES
G.S. 105-130.40 and G.S. 105-151.17, as amended, provide that
certain employers may be eligible for and may qualify for a
credit against the tax proposed by the North Carolina
Department of Revenue. This credit of two thousand eight
hundred dollars ($2,800) may be claimed when qualifying
full-time employees are added by an eligible employer in a
severely distressed county. The legislation sets out particular
responsibilities for two separate departments of State
Government; this Section is to set how the Department of
Commerce will conduct activities and responsibilities assigned
to it under this act.
Authority G.S. 105-130.40(a),(c) and (d); 105-151.17(a),(c) and
(d); Chapter 568, 1987 S.L.; Chapter 111 and 753, 1989 S.L.
04 NCAC 01J .0102 DEFINITIONS
(a) "Distress factor": a distress factor is defined as the sum of:
(1) the county's rank in a ranking of counties by
rate of unemployment from lowest to highest,
and
(2) the county's rank in a ranking of counties by
per capita income from highest to lowest.
(b) "Date of signing" shall be defined as the date on which the
Secretary of Economic and Community Development, his
designee, or the Commerce Finance Center receives and accepts
as complete, a commitment under Paragraph (d) of G.S.
105-130.40 and G.S. 105-151.17. Such a commitment will not
be so defined unless it is signed by a officer of the corporation or
by the taxpayer.
(c) "Department" means the North Carolina Department of
Economic and Community Development.
(d) "Eligible employer" is defined as a corporation or taxpayer
that is located or proposes to locate in a distressed county and
has received an approved "Determination of Eligibility" from the
Department of Economic and Community Development.
(e) "Full time employee" is defined as an employee who holds a
full time job.
(f) "Full time job" is defined as a position that is located in the
distressed county and requires at least 1600 hours of work per
year and is intended to be held by one person during the entire
year.
(g) "Letter of Commitment" is defined as an agreement between
the department and a corporation or a taxpayer. This letter of
commitment will set out:
(1) the name of the corporation or the individual
taxpayer entity that will file the North Carolina
tax return under Chapter 105;
(2) the name that will be used in the conduct of
business, if different from Paragraph (g)(1) of
this Rule;
(3) the permanent or Home Office address of the
management group directing the operation of
the business;
(4) the location(s) of the qualifying business
operations within the distressed county;
(5) a schedule showing the number of permanent
full time positions to be created and the time
sequence for their being filled;
(6) an estimate of the cost of new capital
expenditures within the distressed county over
the two year time period of the commitment;
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1009
(7) an official contact with the operating firm to
whom inquiries pertinent to the agreement can
be directed;
(8) the date of signing, as defined in Paragraph (b)
of this Rule.
(h) "Determination of Eligibility" is defined as the finding made
by the Department of Economic and Community Development
that the corporation or taxpayer which is creating jobs is eligible
to participate in the Job Tax Credit program. Such finding will
be based on information, submitted on a format prescribed by
the Secretary, which shows:
(1) Corporation or taxpayer name, local (NC)
address, county, telephone number; and
(2) Evidence offered by the corporation or
taxpayer that its firm is eligible to participate
in the Job Tax Credit based on one of the
following criteria:
(A) Firm obtained a Job Tax Credit for
the year 1988.
(B) Firm is listed in the Directory of
Manufacturing Firms in North
Carolina, published by the North
Carolina Department of Economic
and Community Development.
(C) Firm has a primary SIC Code in the
manufacturing group numbered
20-299 as listed in the Standard
Industrial Classification Manual,
1987, published by the Executive
Office of the President, Office of
Management and Budget.
(D) Firm otherwise documents in
narrative form, on form provided by
Department, its position that it is
engaged in the manufacturing of
goods or is engaged in an industrial
activity such as the processing of
foods, raw materials, chemicals or
process agents, goods in process, or
finished goods.
(i) "Severely Distressed County" is defined as a county
designated as such by the Secretary of the Department of
Economic and Community Development. The Secretary will
make such a designation only if a county has a distressed factor
that is one of the 25 highest in the state.
Authority G.S. 105-130.40(a),(c) and (d); 105-151.17(a),(c) and
(d); Chapter 568, 1987 S.L.; Chapter 111 and 753, 1989 S.L.
SECTION .0200 - DESIGNATION OF SEVERELY
DISTRESSED COUNTIES
04 NCAC 01J .0201 DESIGNATION OF SEVERLY
DISTRESSED COUNTIES
(a) On or before December 31 of each calendar year, the
Secretary of the Department shall designate which counties are
considered as severely distressed, and shall provide that
information to the Secretary of Revenue. The Department will
obtain from the North Carolina Employment Security
Commission the adjusted monthly estimates of unemployment
for the most recent 36 month period for which data is available.
Those monthly estimates will be averaged and those averages
used to rank the counties by arranging them in numerical order
of the county with the lowest unemployment as number 1 to the
county with the highest unemployment as number 100.
(b) The Department will obtain from the United States
Department of Commerce the latest available annual per capita
income figures, by county, for the most recent 36 month percent
for which data is available. Those annual figures will be
averaged and those averages used to rank the counties in
numerical order of the county with the highest per capita income
average as number 1 to the county with the lowest per capita
income average as number 100. These two rankings will be
totaled so as to provide a sum which will be the county's distress
factor. Those 25 counties with the highest distress factors will
be designated as severely distressed by the Secretary of
Economic and Community Development. The list of counties so
designated will be provided to the Secretary of the North
Carolina Department of Revenue. In addition, written notice of
that designation will be given to the chairman of elected
governing board in each county so designated.
Authority G.S. 105-130.40(a),(c) and (d); 105-151.17(a),(c) and
(d); Chapter 568, 1987 S.L.; Chapter 111 and 753, 1989 S.L.
SECTION .0300 - LETTER OF COMMITMENT
04 NCAC 01J .0301 LETTER OF COMMITMENT
"Letter of Commitment" will be made in the form prescribed by
the Department of Commerce. They will complete as defined in
Rule .0102 (g) of this Section. When accepted and signed by the
secretary, or his designee, that acceptance will be given in
writing to the person(s) or entity offering the commitment.
These commitments will be received and will be kept on record
at the Commerce Finance Center, Room 2174, Dobbs Building,
430 N. Salisbury Street, Raleigh, North Carolina 27611. A
summary listing of those commitments made available to the
Department of Revenue within 90 days after the close of each
calendar year.
Authority G.S. 105-130.40(c) and (d); 105-151.17(c) and (d);
Chapter 568, 1987 S.L.
SECTION .0400 - SUBSTANTIATION OF CREDIT
CLAIMED
04 NCAC 01J .0401 SUBSTANTIATION OF CREDIT
CLAIMED
Every taxpayer claiming the Jobs Tax Credit shall maintain and
make available for inspection by the Secretary of Revenue such
records as may be necessary to determine and verify the amount
of credit to which the taxpayer is entitled. The burden of
proving eligibility for the credit and the amount of the credit
rests with the taxpayer, and no credit will be allowed to the
taxpayer who fails to maintain adequate records or to make them
available for inspection.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1010
Authority G.S. 105-130.40(f); 105-151.17(f); Chapter 111, 1989
S.L.
SECTION .0500 - DETERMINATION OF ELIGIBILITY
04 NCAC 01J .0501 DETERMINATION OF
ELIGIBILITY
"Determination of Eligibility" will be made in the form
prescribed by the Department of Economic and Community
Development. The Corporation or taxpayer will complete that
form as defined in Rule .0102 (h) of this Subchapter. When
accepted, approved or disapproved, and signed by the Secretary
or his designee, that action will be given to the corporation or
taxpayer requesting the Determination. Such actions will be
kept on record at the Commerce Finance Center, Room 2174,
Dobbs Building, 430 N. Salisbury Street, Raleigh, North
Carolina 27611.
Authority G.S. 105-130.40(b1); 105-151.17(b1); Chapter 753,
1989 S.L.
SUBCHAPTER 01K - ECONOMIC DEVELOPMENT
ACTIVITY OF THE COMMUNITY DEVELOPMENT
BLOCK GRANT PROGRAM
SECTION .0100 - GENERAL PROVISIONS
04 NCAC 01K .0105 PROJECTS NOT TO BE
CONSIDERED FOR FUNDING
(a) Projects that have evidence of prior major financial
commitment by the local government applicant or the proposed
project business. After an operator or beneficiary becomes
economically committed to a project, it shall not be eligible for
funding and the unit of government shall not be eligible to
request any funding assistance to serve that project with utilities
or CDBG loan assistance. "Economic commitment" is not a
quantitative measure, but those types of prohibited situations
shall include the following:
(1) when construction contracts have been signed;
(2) when equipment purchase orders for site
specific installations have been issued;
(3) when true, simple options for the purchase of
an existing facility are bound with deposits
that are so large that the option constitutes a
sales contract; or
(4) when conditions or contingencies in a contract
of sale have all been met; or met.
(5) when public announcements include no
expression of the need for CDBG
participation.
(b) Proposed projects that are specifically prohibited by current
State and HUD rules due to lack of public benefit and potential
failure to meet required program objectives shall not be eligible
for CDBG assistance when the following occurs:
(1) provide general, non-specific promotion of a
community as a whole;
(2) assist professional sports teams;
(3) assist privately-owned recreational facilities
that would serve a predominantly higher-income
clientele, where such recreational
benefit clearly outweighs employment or other
benefits to LMI persons;
(4) acquire land for which no specific purpose has
yet been identified; or
(5) assist a for-profit business while that business
or any other business owned by the same
person, persons or entity is the subject of
unresolved findings of non-compliance
relating to present or previous CDBG
assistance provided by the applicant.
Authority G.S. 143B-431; 24 C.F.R. 570.489; 42 U.S.C.A. 5301.
SECTION .0200 - APPLICATION PROCEDURE
04 NCAC 01K .0202 PRE-APPLICATION
CONFERENCE
(a) Local units of government may advise the Department when
they enter into serious consideration of an economic
development project which may lead to an application. The
Department shall assist the community as requested within the
limits of available resources. Technical advice, liaison and
coordination shall be effected by the Department through the
Commerce Finance Center. Available services include:
(1) forms and documents relating to the
application process with informative
comments,
(2) advice on the type of projects that are
considered eligible for CDBG program
assistance,
(3) examination of, and comment on, assembled
facts and data which might be used in the
preparation of application, and
(4) analysis of approach to likely or potential
procedural or environmental problems.
(b) Prior to submission to the Department of a project
application, the unit of government shall arrange for a pre-application
conference with the Commerce Finance Center.
Parties whose presence are required at the pre-application
conference shall include a member of the elected governing
board for the unit of government, or an authorized designee, a
corporate official, or authorized designee, from the employer or
project company and a representative from a participating bank -
- if the proposed project will involve a loan and a bank has been
selected.
(c) The purpose of the conference is to ensure that the
application procedures are clearly understood so that the
application, shall be complete when submitted and all parties
involved will be made aware of the application process and its
anticipated time frame.
(d) The operator shall offer written project descriptions
whenever possible and may provide data relative to the character
and volume of process wastes, water and air discharges of
pollutants, as well as any comment or permits already received
from the Division of Environmental Management.
(e) The applicant will provide documentation of the first
required public hearing if such a public hearing has been held
within the most recent six months.
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(f) The Department will make no funding decision regarding a
prospective project prior to a full consideration of the completed
application. However, the Commerce Finance Center may issue
a Letter of Encouragement or a Letter of Concerns if so
requested by the unit of government. This letter will convey
comments pertinent to the project and the preparation of the
application and will enumerate any points of concern which are
developed as a result of the information made available at the
conference. These points of concern will be generated so that
the applicant's response may include pertinent facts and data.
The issuance of a letter of encouragement will not preclude the
Secretary or the Commerce Finance Center from raising new
questions or areas of concern after an application is received.
Authority G.S. 143B-431; 24 C.F.R. 570.489; 24 C.F.R.
570.496.
04 NCAC 01K .0204 DISCRETIONARY PUBLIC
HEARING BY THE DEPARTMENT
(a) The Secretary may hold a public hearing on the proposed
project.
(b) If a public hearing is held, the applicant shall give at least 10
days notice prior to the hearing. The notice shall specify the
date, time, place and subject matter of the hearing and be
published in the non-legal section of a newspaper of general
circulation in the applicant's county.
(c) A transcript of the hearing shall be prepared by the Secretary
and, along with any exhibits, made a part of the application.
Authority G.S. 143B-431; 42 U.S.C.A. 5301.
04 NCAC 01K .0207 REIMBURSEMENT OF
DEPARTMENT EXPENSE
Where the Department finds it necessary to incur expense
pertinent to the consideration of an application, the expenditure
shall not be made unless the unit of government or its proposed
beneficiary agrees to reimburse the Department. Such
expenditures shall be limited to out-of-pocket costs of the
Department such as travel and advertising.
Authority G.S. 143B-431; 24 C.F.R. 570-489.
CHAPTER 14 - ECONOMIC DEVELOPMENT
DIVISIONS: DIVISION OF BUSINESS ASSISTANCE
SUBCHAPTER 14B - GOVERNOR'S COMMUNITY OF
EXCELLENCE AWARD PROGRAM
SECTION .0100 - PURPOSE AND PROCEDURE
04 NCAC 14B .0109 PURPOSE
The purpose of the Governor's Community of Excellence Award
Program is to motivate communities to prepare for economic
development, and to develop an inventory of prepared
communities which could be presented to industrial clients. This
is an annual awards program.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0110 INITIAL CONTACT
Any individual, organization or community may initiate contact
with the department, through the Director, Small Community
Economic Development Task Force, Department of Commerce,
430 North Salisbury Street, Raleigh, North Carolina 27611. The
initial contact should be in writing and express the desire to have
the community enter the Governor's Community of Excellence
Award Program.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0111 STAFF PRESENTATION
Within a reasonable time after the initial contact is made, the
appropriate staff members of the division will make a
presentation to the responsible community officials and/or any
other interested residents on the subsequent procedures to
continue in consideration for the award, the requirement of an
inspection, the community journal requirement, and the award
criteria used by the program staff.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0112 ENTRY FORM
(a) Within a reasonable time after the staff presentation and no
later than April 15th, the community must complete the official
entry form. An incomplete entry form will be returned for
completion and will not be considered until it is completed.
(b) The entry form requests the name of the official organization
sponsoring the city, the coordinator, the name of the chairperson
of the following required committees: sponsoring organization
committee, livability committee, industrial site committee,
promotional materials committee, community profile committee,
existing industry committee, community planning committee
and the development team committee. (See 14B .0200 of rules
filed.) The entry deadline is April 15th.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0113 STATUS REPORT
The chairperson of each committee must provide the appropriate
field services representative a summary of information data and
pictorial evidence, where appropriate, on each of the award
criteria. Requirements must be completed by September 15th.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0114 INSPECTION
(a) Within a reasonable time after the form is returned and all
necessary status reports are submitted, the appropriate field
services representative shall decide whether or not a community
inspection should take place. This decision is based on whether
or not the responses in the entry form and status reports indicate
that the specified requirements in seven different categories are
being met.
(b) The Director, Small Community Economic Development
Task Force, North Carolina Department of Commerce, upon
request of the community through the field services
representative, will cause to be assembled an inspection team,
consisting of professional industrial developers and associated
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1012
persons. The team will visit the community and will inspect all
aspects of the community's responses to the program
requirements.
(c) For the inspection, the entrant must provide a community
journal to the inspection team. The community journal is to
contain information, data, and pictorial evidence of compliance
with the categorized requirements. The community journal will
be returned to the community.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0115 AGENCY DECISION
(a) If the inspection team verifies upon the basis of its
investigations and other evidence that the community in fact
meets the requirements in all seven categories, a
recommendation is made by the Director, Small Community
Economic Development Task Force, to the Governor that the
award be presented. The Governor, thereafter will forward a
letter of designation to the successful community.
(b) If the inspection team finds on the basis of its investigation
that the community does not meet one or more of the
requirements, then the Director, Small Community Economic
Development Task Force, shall notify the community in writing
of the deficiencies and indicate that the community may apply
for a re-inspection. All inspections are to be completed by
October 15th.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0116 GOVERNOR’S COMMUNITY OF
EXCELLENCE PLAQUE
Successful communities will be presented with a Governor's
Community of Excellence plaque as evidence of their
achievement.
Authority G.S. 143B-432; 143B-10(j).
SECTION .0200 - AWARD CRITERIA
04 NCAC 14B .0211 MAXIMUM SIZE OF
COMMUNITY
This program is limited to communities with population of
15,000 or less (based on latest North Carolina Department of
Administration estimates).
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0212 SPONSORING ORGANIZATION
A community to be eligible for the Governor's Community of
Excellence Award must be represented by a sponsoring
organization (city council, civic club, chamber of commerce,
etc.). This organization must have as one of its purposes the
promotion of economic development in the community. "In
addition a chartered development corporation must exist that is
capable, among other things, of financing of construction of
industrial building that can be leased to industrial clients." An
industrial facilities and pollution control financing authority
must exist.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0213 COMMUNITY PROFILE
A current community profile on the community must be
completed on a form provided by the division. The profile must
bear the signature of a designated official of the municipality or
of the recognized local development organization, attesting to
the authenticity of the data contained therein. Plans to correct
any deficiencies or weaknesses as identified in the profile must
be presented.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0214 INDUSTRIAL SITES
(a) A specified number of industrial sites must be developed and
full information on each submitted on the industrial site forms of
the division of industrial development.
(b) To qualify, each site must have a minimum size of 10 acres.
Industrial site information must include topographical maps,
aerial photographs, and plat maps. There is no maximum size
limitation. Some element of control over these sites must be
shown. This could be ownership by the development
corporation, an option, letter of first refusal, etc. The critical
factor is that the site could be sold to a prospect at a definite
price. Requirements by population are as follows:
(1) population under 3,000 submit at least two
industrial sites; If the community is served by
rail, at least one of these sites must be able to
be served by rail;
(2) population from 3,001 to 7,000 submit at least
three industrial sites; If the community is
served by rail, at least one of these sites must
be able to be served by rail;
(3) population from 7,001 to 15,000 submit at
least five industrial sites; If the community is
served by rail, at least three of these sites must
be able to be served by rail.
(c) To qualify, an industrial site does not have to be newly
developed. Existing qualified sites are acceptable.
(d) To assist the industrial site committee, an information sheet
is provided listing the normal requirements of an industrial site.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0215 PROMOTION MATERIALS
(a) Brochure
(1) An up-to-date brochure or other form of
promotional literature must be prepared for the
community. In addition to the usual local
information normally contained in such
publications, it should contain information on
industrial sites, utilities and a statement on the
interest and ability of the local development
corporation to finance construction of
industrial buildings.
(2) In order to be effective, promotional literature
need not be expensive and elaborate. What is
needed is a concise presentation on the various
aspects of community makeup. The field
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26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1013
services representative of the division of
industrial development is available for
guidance at all times.
(b) A 10-15 minute slide presentation must be prepared on the
community.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0216 EXISTING INDUSTRY
COMMITTEE
Each industry within the town will be visited, preferably by a
two man visitation team. The purpose of this contact is to gain
existing industry's awareness and support of the community's
effort to promote economic development and to offer assistance
to problems encountered by existing industry. The list of
industries will be obtained from the North Carolina Directory of
Manufacturing Firms plus any which have located since the
directory was published. The list should include those firms
normally associated with a town, even if they are not located
inside the city limits. A copy of the suggested call sheet or
record form to be used is provided. A copy for each industry
visit will be included in the materials to be submitted in the
judging process.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0217 COMMUNITY PLANNING
REQUIREMENT
An organized, functioning planning board, appointed by the
governmental unit is a requirement in the Governor's
Community of Excellence Award Program. Field office
personnel of the divisions of community assistance and
industrial development will meet with the chairperson for this
category and determine the actual planning requirement for the
community. This will ensure flexibility for individual
communities rather than set state-wide requirements which
might not be meaningful to certain communities.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0218 LIVABILITY REQUIREMENT:
CLEANUP-FIXUP
(a) An organized cleanup-fixup campaign, involving all sectors
of the populous, must be conducted. A well organized campaign
to improve the visual aspects of the community can have a
dramatic effect in developing a positive attitude toward overall
community improvement. The ability "to see ourselves as others
see us" will spotlight many things that need to be done in a
cleanup-fixup campaign.
(b) The cleanup-fixup must be publicized as a part of the
community's efforts to achieve the Governor's Community of
Excellence Award.
(c) Information to assist in conducting a campaign is available
through the following address:
Keep North Carolina Beautiful Inc.
401 Oberlin Road
Raleigh, North Carolina 27605
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0219 RECREATION
(a) Field office recreational personnel of the divisions of parks
and recreation and industrial development will meet with the
chairperson of the recreation category to determine the
recreation requirement for the community.
(b) Potential tourist attractions for the community must be
identified.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0220 DEVELOPMENT TEAM
REQUIREMENT
(a) A development team is comprised of local citizens who are
knowledgeable about such things as transportation, utilities,
government services and taxes, labor resources, and other factors
that are important in a client's selection of a community. It is this
group which meets with industrial clients visiting the
community; or, perhaps, visits potential clients. Teams have
also been used to attract doctors and retail stores.
(b) The Department of Commerce encourages the establishment
of a development team with designated individuals responsible
for specific categories of information. For the purpose of
fulfilling the community of excellence requirement for a
development team, the field services representative may, in
conjunction with the Chairman of the Development Team
Committee, certify that the community's existing effort fulfills
this requirement.
Authority G.S. 143B-432; 143B-10(j).
CHAPTER 19 - DIVISION OF COMMUNITY
ASSISTANCE
SUBCHAPTER 19L - NORTH CAROLINA COMMUNITY
DEVELOPMENT BLOCK GRANT PROGRAM
SECTION .1300 - HOUSING DEVELOPMENT
PROJECTS
04 NCAC 19L .1301 DESCRIPTION
Grants under this category shall support the development of
housing opportunities for low- and moderate-income persons.
The Division may limit the use of program funds to specific
eligible activities.
Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.483.
04 NCAC 19L .1302 ELIGIBILITY REQUIREMENTS
(a) Applications for Housing Development funds must show
that:
(1) At least 51 percent of the CDBG funds
proposed for each project will benefit low- and
moderate-income persons; and
(2) CDBG funds proposed for each activity shall
meet a national objective as specified in HUD
regulations previously incorporated by
reference, except that funds shall not be used
to meet the national objective of urgent need
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1014
which is covered by Rule .0801 of this
Subchapter.
Applicants that do not meet these requirements will not be rated
or funded.
(b) Applicants shall have the capacity to administer a
Community Development Block Grant Program. The Division
may examine the following areas to determine capacity:
(1) audit and monitoring findings on previously
funded Community Development Block Grant
Programs, and the applicant's fiscal
accountability as demonstrated in other state or
federal Programs or local government
financial reports; and
(2) the rate of expenditure of funds in previously
funded Community Development Block Grant
Programs.
Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.482; 24
C.F.R. 570.483.
04 NCAC 19L .1303 SELECTION CRITERIA
(a) The Division may accept applications at any time after the
beginning of the program year.
(b) Housing Development projects shall be rated by the
Division against the following specific criteria:
(1) 85% of the project rating shall be based upon
the project design including the feasibility of
the project, its financial design, the capacity
and experience of the applicant and other
parties involved, the amount of leveraging
other funds, the suitability of the site and
surrounding amenities, and the demand from
the marked; and
(2) 15% of the project rating shall be based upon
the benefit to low and moderate income
persons both immediate and long-term.
Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.489.
CHAPTER 20 - EMPLOYMENT AND TRAINING
SUBCHAPTER 20B - ADMINISTRATIVE PROVISIONS
SECTION .0400 - PERSONNEL STANDARDS FOR
SUBRECIPIENTS
04 NCAC 20B .0402 FEDERAL PERSONNEL
STANDARDS
(a) Under the subgrant agreement and the contract document,
subrecipients are required to comply with "Standards for a Merit
System of Personnel Administration" established by the Office
of Personnel Management of the federal government. A copy of
these standards is available from the Division or from the Office
of State Personnel located at 116 West Jones Street, Raleigh,
North Carolina, 27611.
(b) All subrecipients are responsible for determining the
applicability of the provisions of the federal Fair Labor
Standards Act to its employees and participants. Technical
assistance in the interpretation and application of the act is
available from the Wage and Hour Division of USDOL located
in the Federal Building, Raleigh, North Carolina, 27611. The
Division may require written verification if it is determined that
participants are not covered by the act.
Authority G.S. 143-16; 143-16.1; 143-341; 143B-430(b); 5
C.F.R. 900, Subpart F; 20 C.F.R. 629.1.
04 NCAC 20B .0403 STATE PERSONNEL
STANDARDS FOR SUBRECIPIENTS
(a) State standards, published by the State Personnel
Commission, which are compatible with the federal personnel
standards, may be applicable to some subrecipients. The
standards may be found in the Manual of Personnel Policies for
Local Government Employees Subject to the State Personnel
Act (Local Personnel Manual), which is available from the
Office of State Personnel, 116 West Jones Street, Raleigh, North
Carolina, 27611.
(b) Local educational agencies that receive JTPA funds
administered by the State Board of Education must comply with
the applicable provisions of Subchapter V, Personnel, of Chapter
115C of the General Statutes and the rules and regulations of the
State Board of Education.
Authority G.S. 115C, Subchapter V; 126-1; 143-16; 143-16.1;
143-341; 143B-430(b).
SECTION .0900 - EMPLOYMENT AND TRAINING
GRANT PROGRAM
04 NCAC 20B .0901 PURPOSE
The purpose of this state funded program is to make grants
available to local agencies operating on behalf of the Private
Industry Council serving Job Training Partnership Act service
delivery areas. Funds shall be used to upgrade the foundation of
basic skills of the adult population and the existing workforce in
North Carolina.
Authority G.S. 143B-438.6.
04 NCAC 20B .0902 GRANT APPLICATIONS
Service delivery areas will submit plans for the use of these
funds as part of the Job Training Plan, in accordance with Rule
.0201 of this Subchapter.
Authority G.S. 143B-438.6.
04 NCAC 20B .0904 COORDINATION WITH OTHER
EMPLOYMENT AND TRAINING FUNDS
These funds will become part of the strategic process
implemented through the Governor's Coordination Criteria and
the strategic planning process used for development of Job
Training Plans by the Private Industry Councils. These PICs
combine the private sector and public sector in an employment
and training service delivery system that is based on local
control, local problem solving, coordination of services and
accountability.
Authority G.S. 143B-438.6.
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26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1015
04 NCAC 20B .0906 USE OF FUNDS
Services that may be provided include participant programs
currently available under the federal Job Training Partnership
Act that are appropriate for adults. Services include but will not
be limited to on-the-job training, work experience, adult basic
education, skill training, upgrading and retraining, counseling
and screening for job placement, service corps, and supportive
services necessary to enable individuals to participate in the
program and to assist them in retaining employment for a period
of one service year following completion of training. PICs have
flexibility to use funds to fill gaps in current
training/self-sufficiency services.
Authority G.S. 143B-438.6.
04 NCAC 20B .0907 COST
LIMITATIONS/CATEGORIES
(a) Administrative costs will be limited to five percent of
allocation. Administrative costs represent indirect and other
costs associated with general management and support functions
of an agency or organization as well as secondary management
and support functions not directly related to program operations.
(b) All non-administrative costs shall be classified as program
costs.
Authority G.S. 143B-438.6.
04 NCAC 20B .0909 PERFORMANCE STANDARDS
Program performance will be evaluated by the Division using a
process patterned after the system of performance standards and
measures required by the JTPA. Local performance measures
will be entered employment rate at termination; average wage at
placement; welfare entered employment rate at termination.
Authority G.S. 143B-438.6.
04 NCAC 20B .0910 MONITORING/OVERSIGHT
The Division will monitor for fiscal and programmatic
compliance, for proper management, for civil rights compliance
and for such other purposes as are reasonable for administration
of these funds as specified in Rule .0502(a) and (b) of this
Subchapter. Oversight includes both on-site visits and in-house
reviews of participant and financial reports.
Authority G.S. 143B-438.6.
04 NCAC 20B .0911 FUND
AVAILABILITY/REDISTRIBUTION
Funds appropriated that are not expended at the end of the
program year will not revert but will remain available to the
Department for continued program purposes.
(1) Voluntary Transfer. A voluntary transfer
process will be available to redistribute funds.
If a service delivery area volunteers to transfer
funds to another service delivery area, these
funds can be removed from the SDA's Notice
of Fund Availability and redistributed by the
State to another SDA. An SDA opting to
transfer funds to another SDA that wishes to
accept those funds may transfer any portion of
its monies, including those exclusively from
one cost category.
(2) Voluntary transfers may be negotiated any
time with the approval of the PICs and Chief
Local Elected Officials from the SDAs
involved, contingent on subsequent Division
approval. An SDA may only transfer funds if
there is another SDA(s) willing to accept the
funds. The Division will act as a
clearinghouse for requests to transfer funds.
Requests to transfer funds must be signed by
the PIC Chairman and Chief Local Elected
Official(s). The Division will consider
requests made by PICs and CEOs to release
funds to a specific SDA.
(3) If funds are released by an SDA to a specific
SDA, the releasing SDA must obtain a letter
from the designated recipient that states that
the SDA accepts the conditions that the
releasing SDA specifies. Such conditions
shall include timing of release and cost
categories. The Division retains the right to
approve or disapprove all negotiated fund
transfers. SDAs are required to adjust their
local Job Training Plans.
(4) Funds must be released by May 1 in order to
be effective for that program year.
Authority G.S. 143B-438.6.
TITLE 12 – DEPARTMENT OF JUSTICE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Private Protective Services Board intends to amend the
rule cited as 12 NCAC 07D .0107.
Link to agency website pursuant to G.S. 150B.19.1(c):
www.ncdoj.gov
Proposed Effective Date: May 1, 2012
Public Hearing:
Date: February 2, 2012
Time: 2:00 p.m.
Location: 4901 Glenwood Avenue, Suite 200, Raleigh, NC
27612
Reason for Proposed Action: These proposed changes are to
set a statute of limitations for Board complaints as licensees
need only maintain records for three years.
Procedure by which a person can object to the agency on a
proposed rule: Objections to the proposed rule changes shall
be submitted before the end of the comment period in writing to
Anthony Bonapart, Deputy Director, Private Protective Services
Board, 4901 Glenwood Avenue, Suite 200, Raleigh, NC 27612.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1016
Comments may be submitted to: Anthony Bonapart, PPSB
Deputy Director, 4901 Glenwood Avenue, Suite 200, Raleigh,
NC 27612
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 07 - PRIVATE PROTECTIVE SERVICES
SUBCHAPTER 07D - PRIVATE PROTECTIVE
SERVICES BOARD
SECTION .0100 - ORGANIZATION AND GENERAL
PROVISIONS
12 NCAC 07D .0107 DISCIPLINARY ACTIONS
(a) The Board may deny, suspend, or revoke deny a license,
trainee permit, registration or firearms trainer certificate for any
violation of G.S. Chapter 74C or 12 NCAC 07D. The Board
may suspend or revoke a license, trainee permit, registration or
firearms trainer certificate for any violation of G.S. Chapter 74C
or 12 NCAC 07D , provided that the violation occurred within
three years of the initiation of the Board investigation of such
violation.
(b) The Board may issue a written reprimand to a holder of a
license, trainee permit, registration identification card or
firearms trainee certificate when the Board determines:
(1) the holder has violated any of the provision of
12 NCAC 07D or G.S. Chapter 74C that were
applicable to the holder;
(2) the violation did not result in the physical
injury of or property loss to any person; and
(3) the holder expresses an intention to or already
has corrected the improper activity. activity;
and
(4) the violation occurred within three years of the
initiation of the Board investigation of such
violation.
(c) A notice of any disciplinary action shall be sent to the
employer of the holder if the holder is employed by a licensee.
(d) Evidence of disciplinary action may be presented and
considered at any subsequent disciplinary proceeding of the
holder.
Authority G.S. 74C-5; 74C-8.
TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND
COMMISSIONS
CHAPTER 22 - HEARING AID DEALERS AND FITTERS
BOARD
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Hearing Aid Dealers and Fitters Board intends to amend the
rules cited as 21 NCAC 22F .0101, .0103, .0107, .0114.
Link to agency website pursuant to G.S. 150B-19.1(c):
www.nchalb.org/Rules/Proposed.21NCAC22F.pdf
Proposed Effective Date: May 1, 2012
Public Hearing:
Date: February 1, 2012
Time: 9:45 a.m.
Location: Commission Room, Office of Administrative
Hearings, 1711 New Hope Church Road, Raleigh, NC 27609
Reason for Proposed Action: The Board voted to remove the
Exam Prep Workshop requirement as a pre-requisite to taking
the exam. It shall be the duty of the sponsor to provide exam
preparation to apprentice. Extending the dates for registration,
notification of exam results, and dates upon which an exam can
be given will give the Board more flexibility in contracting with
an Exam Administrator for the lowest cost.
Procedure by which a person can object to the agency on a
proposed rule: A person can object to the agency by speaking
at the public hearing on February 1, 2012 or by submitting
written comments to the following address no later than March
19, 2012: NC State Hearing Aid Dealers and Fitters Board,
Attn: Rulemaking 22F, P.O. Box 97833, Raleigh, NC 27624.
Comments may be submitted to: Catherine Jorgensen,
Rulemaking Coordinator, NC State Hearing Aid Dealers and
Fitters Board, P.O. Box 97833, Raleigh, NC 27624
Comment period ends: March 19, 2012
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1017
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
SUBCHAPTER 22F - GENERAL EXAMINATION AND
LICENSE PROVISIONS
21 NCAC 22F .0101 TIME OF EXAMINATIONS
The Board shall hold the qualifying examination
examinations as set forth in G.S. 93D-8 onby publicizing
each exam at least 90 days in advance, with one exam being
offered on a day during the first Saturday week in May of
each year year, and may hold an, and additional examinations
offered during the year examination on the first Saturday in
November of each year if a sufficient number of timely-filed
applications are received to justify, in at the Board's
discretion. discretion, holding such additional examination.
Authority G.S. 93D-3(c); 93D-8.
21 NCAC 22F .0103 SUBMISSION OF
APPLICATIONS AND FEES
(a) A duly made application for issuance or renewal of an
apprentice registration certificate shall be submitted to the
Board no later than ten working days after the date that any of
the following conditions exist:
(1) Whenever a registered apprentice is separated
from his sponsor for any reason and such
individual wishes to obtain a new certificate to
replace the invalidated certificate;
(2) Whenever a registered apprentice is notified
by the Board that he failed to pass the
qualifying examination and such individual
wishes to renew his certificate;
(3) Whenever the Board notifies the individual
that his apprentice registration certificate has
been invalidated for any reason and such
individual wishes to obtain a new certificate to
replace the invalidated certificate; and
(4) Whenever an Audiologist duly makes
application for issuance of a license by
examination and that individual elects to
become a registered apprentice in order to
engage in the fitting and selling of hearing
aids, under the supervision of a licensee
approved by the Board, while waiting to take
the next scheduled qualifying examination.
(b) A registered apprentice who holds a masters degree in
Audiology and is not an Audiologist, as defined in 21 NCAC
22A .0301(2), must complete 250 clock hours of supervision by
a licensee approved by the Board. However, no later than ten
working days after any registered apprentice who is not an
Audiologist has held a valid apprentice registration certificate
for 365 calendar days, the apprentice shall submit a duly made
application for issuance of a license by examination and shall
take the next scheduled qualifying examination. All registered
apprentices shall reapply for a license by examination, within the
time prescribed in Paragraph (c) of this Rule, each time they take
and fail to pass the qualifying examination.
(c) Whenever a registered applicant is required to take the
qualifying examination as a condition for issuance of a license or
reissuance of a suspended license, the duly made application
shall be considered by the Board to be timely if it is received by
the Board no later than 3045 consecutive days prior to the
examination date. The Board shall have the right to refuse any
person admission to the qualifying examination if such
individual has not submitted the duly made application
application, as defined in 21 NCAC 22A .0309.for issuance or
reissuance of a license, has not attended an examination
preparation workshop as set forth in 21 NCAC 22F .0014(b), or
has not made a timely filing.
(d) All fees shall be made payable to the N.C. Hearing Aid
Dealers and Fitters Board. When a company or personal check
is received in payment of any fee, the Board shall wait until final
credit on the check is received before providing the license or
other document requested. A processing fee of twenty dollars
($20.00) (or any greater amount allowed by law) shall be
charged for any check on which payment is refused by the payor
bank because of insufficient funds or because the drawer did not
have an account at that bank at the time the check was presented
to the Board.
Authority G.S. 25-3-506; 93D-3(c); 93D-5; 93D-9.
21 NCAC 22F .0107 COMMUNICATION OF
RESULTS OF EXAMINATIONS
The office of the Board shall issue written notification to each
registered applicant, by mailing exam results to the physical
address provided by the applicant, concerning only his own
the applicant's performance on the qualifying examination, no
later than 10 30 working days after the date of the
examination.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1018
Authority G.S. 93B-8; 93D-3(c).
21 NCAC 22F .0114 TRAINING AND SUPERVISION
(a) Each registered apprentice, excluding those Audiologists
who elect to be a registered apprentice while waiting to take
the qualifying examination for the first time, shall submit to
direct supervision by a licensee who is approved by the Board
and who shall be responsible for the apprentice's training and
supervision in the following areas:
(1) Anatomy, physiology, and pathology of the
auditory mechanism;
(2) Measurement techniques and test
interpretation for assessment of hearing
impairment and hearing handicap;
(3) Hearing aid technology including instrument
circuitry and acoustic performance data;
(4) Design, selection, and modification of
earmold/shell coupling systems;
(5) Hearing aid selection procedures, and fitting
and adjustment techniques;
(6) Post-delivery care including hearing aid
orientation and counseling techniques, and
hearing aid servicing;
(7) Ethical conduct and regulatory issues
concerning the fitting and selling of hearing
aids; and
(8) Other related topics that the sponsor or
apprentice deem necessary.
(b) Before taking the qualifying examination for the first time,
each registered apprentice who is not an Audiologist shall attend
an examination preparation workshop, approved or sponsored by
the Board, which consists of one 3-day session. The workshop
dates shall be scheduled in conjunction with the dates for the
qualifying examinations. Information concerning the scheduled
times, dates, and topics for each workshop may be obtained from
the office of the Board. Written notice of intent to attend any or
all of the daily sessions shall be received by the Board at least 10
working days prior to the starting date of each workshop.
(c) The Board shall have the right to refuse any person
admission to the workshop sessions if the individual is not a
registered apprentice or a registered applicant, or if timely
notification of intent to attend was not made in accordance with
Paragraph (b) of this Rule.
Authority G.S. 93D-3(c); 93D-5; 93D-9.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 63 – SOCIAL WORK CERTIFICATION
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Social Work Certification and Licensure Board intends to
amend the rules cited as 21 NCAC 63 .0208, .0210, .0403-.0404.
Link to agency website pursuant to G.S. 150B-19.1(c):
www.ncswboard.org
Proposed Effective Date: July 1, 2012
Public Hearing:
Date: March 8, 2012
Time: 9:30 a.m.
Location: 1207 S. Cox Street, Suite F, Asheboro, NC 27203
Reason for Proposed Action: Pursuant to authority under G.S.
90B-6.2, the Board proposes to increase fees for select services.
The Board operates from the fees collected for services and has
not increased fees since October 1999. The proposed increases
follow a yearlong analysis of the Board's expenses, revenues,
and staffing needs as they relate to ensuring quality operations
and fiscal solvency for the coming years.
21 NCAC 63 .0208 – proposes to increase the application fee
from $100 to $115. In addition the language of the rule is
improved to accurately reflect applicant's responsibility for
payment.
21 NCAC 63 .0210 – requires amendment to remove redundant
and ambiguous language.
21 NCAC 63 .0403 – proposes to increase the biennial renewal
fees. Two sections are included to provide clear fee information
for individuals whose credential expires 06/30/11 but who renew
within the sixty-days allowed for late renewal pursuant to G.S.
90B-9(c). The increases are based on the degree and
employment potential for the different credential levels: CSW
from $60 to $70, CMSW from $75 to $90, P-LCSW from $125 to
$140, and both CSWM and LCSW from $125 to $150.
21 NCAC 63 .0404 – proposes to increase the reinstatement fee
from $100 to $125 for certificates or licenses retired or
suspended for failure to renew; and redundant language already
addressed by (G.S. 90B-4) is removed to improve the rule.
Procedure by which a person can object to the agency on a
proposed rule: State the objection and reasons for the
objection. Specify the text of the rule to which the objection
pertains. Submit the text of the rule, stated objection, and
reason for the objection in writing to the Rule Making
Coordinator, Micki Lilly, Executive Director, NCSWCLB, P.O.
Box 1043, Asheboro, NC 27204.
Comments may be submitted to: Micki Lilly, Executive
Director, NCSWCLB, P.O. Box 1043, Asheboro, NC 27204, fax
(336)625-4246, email mswboard@asheboro.com
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1019
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
SECTION .0200 - CERTIFICATION
21 NCAC 63 .0208 APPLICATION FEE
An initial application fee of one hundred dollars ($100) will be
assessed for processing each application. Each applicant for
certification or licensure by the Board shall submit an initial
application fee of one hundred and fifteen dollars ($115.00) with
the application.
Authority G.S. 90B-6; 90B-6.2.
21 NCAC 63 .0210 PROVISIONAL LICENSES
(a) The Board shall issue a provisional license to any person
who meets the requirements in G.S. 90B-7(f).
(b) Applications and forms shall be obtained from and returned
to the Board Office.
(c) The Board shall assess an application fee of one hundred
dollars ($100.00) for processing each application.
(d)(c) Prior to practicing clinical social work, applicants must
demonstrate in writing that, in the event of a clinical emergency
they have immediate access to a licensed mental health
professional who has agreed to provide to them emergency
clinical consultation to assure that standards of clinical social
work practice are maintained. Provisionally- licensed clinical
social workers shall immediately notify the Board in writing of
any change in such access.
(e)(d) Each provisional licensee must be supervised as set forth
in G.S. 90B-7(f), and, shall receive on-going appropriate
supervision, as defined in Rule .0211(a)(2) of this Chapter, until
the provisional licensee is licensed as a Licensed Clinical Social
Worker.
(f)(e) All provisional licensees shall submit reports of their
clinical social work experience and supervision on the
appropriate Board form(s) every six months for review and
evaluation by the Board.
(g)(f) To prevent a lapse in licensure, provisional licensees who
desire to become Licensed Clinical Social Workers shall
complete the application process for the Licensed Clinical Social
Worker classification and submit the application fee of one
hundred dollars ($100.00) early enough to allow 30 days for
administrative processing and Board action prior to the
expiration of the provisional license.
Authority G.S. 90B-6; 90B-7.
SECTION .0400 – RENEWAL OF CERTIFICATION
21 NCAC 63 .0403 RENEWAL FEES
(a) Fees for renewal of certificates or licenses: licenses which
are due for renewal on or before June 30, 2012 shall be as
follows:
(1) For Certified Social Workers (CSW's) the
renewal fee shall be sixty dollars ($60.00).
(2) For Certified Master Social Workers
(CMSW's) the renewal fee shall be seventy-five
dollars ($75.00)
(3) For Licensed Clinical Social Workers
(LCSW's) the renewal fee shall be one
hundred twenty-five dollars ($125.00).
(4) For Certified Social Work Managers
(CSWM's) the renewal fee shall be one
hundred twenty-five dollars ($125.00).
(b) Fees for renewal of certificates or licenses which are due for
renewal after June 30, 2012 shall be as follows:
(1) For Certified Social Workers (CSW's) the
renewal fee shall be seventy dollars ($70.00).
(2) For Certified Master Social Workers
(CMSW's) the renewal fee shall be ninety
dollars ($90.00).
(3) For Licensed Clinical Social Workers
(LCSW's) the renewal fee shall be one
hundred and fifty dollars ($150.00).
(4) For the provisionally Licensed Clinical Social
Workers (P-LCSW’s) the renewal fee shall be
one hundred and forty dollars ($140.00).
(5) For Certified Social Work Managers
(CSWM's) the renewal fee shall be one
hundred and fifty dollars ($150.00).
(b)(c) Persons whose applications for renewal are received by
the Board after the renewal date of their certificate or license, but
no later than 60 days after the renewal date, shall be assessed a
late renewal fee of fifty dollars ($50.00) in addition to any other
applicable fees.
Authority G.S. 90B-6; 90B-6.2; 90B-9(b).
21 NCAC 63 .0404 REINSTATEMENT
(a) Persons whose certificate or license is suspended for failure
to renew, pursuant to G.S. 90B-9(c), are prohibited from
engaging in the practice of clinical social work and from holding
themselves out as certified or licensed by the Board until they
apply for and receive reinstatement of their certificate or license
by the Board.
(b) Persons who apply for reinstatement Each applicant for
reinstatement of a certificate or license issued by the Board after
temporary retirement from the practice of social work pursuant
to G.S. 90B-9(d), or after their certificate or license was
suspended for failure to renew, shall be assessed a reinstatement
fee of one hundred dollars ($100.00) in addition to any other
applicable fees. submit to the Board a reinstatement fee of one
hundred and twenty-five dollars ($125.00) in addition to any
other applicable fees with the application.
Authority G.S. 90B-6; 90B-6.2; 90B-9.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1020
TITLE 25 – OFFICE OF STATE PERSONNEL
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Personnel Commission intends to amend the rules cited
as 25 NCAC 01B .0436-.0438.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.osp.state.us/rtable.comm/spc.htm
Proposed Effective Date: June 1, 2012
Public Hearing:
Date: March 19, 2012
Time: 10:00 a.m.
Location: Third Floor Conference Room, Administration
Building, 116 West Jones Street, Raleigh, NC 27603
Reason for Proposed Action:
25 NCAC 01B .0436 – This Rule is being updated to reflect the
processes that have changed in State government as a result of
the implementation of electronic processing of personnel
actions. Systems such as BEACON and other centralized human
resources/payroll information management systems have largely
replaced the processing of paper forms.
25 NCAC 01B .0437 – This Rule is being proposed due to the
recent statutory changes resulting from Senate Bill 781, whereas
the State Personnel Commission no longer makes the final
decision in contested cases brought under Chapter 126. This
Rule will remain effective for petitions filed in the Office of
Administrative Hearings prior to January 1, 2012.
25 NCAC 01B .0438 – This Rule is proposed to be amended as a
result of recent statutory changes resulting from Senate Bill 781,
the Regulatory Reform Act. The State Personnel Commission
will no longer be making findings or issuing orders under that
portion of General Statutes 126-4(11) which makes Commission
review a prerequisite to one situation in which the Commission
may award attorney's fees.
Procedure by which a person can object to the agency on a
proposed rule: A public hearing will be held on March 19,
2012 at 10:00 a.m. The hearing will be held in the third floor
conference room, Administration Building, 116 West Jones
Street, Raleigh, NC. The purpose of the hearing is to receive
oral and written comments/objections regarding the proposed
action of the following rules: 25 NCAC 01B .0436, .0437 and
.0438. Written comments/objections not submitted during the
public hearing should be sent to: Mr. Ken Litowsky, Human
Resources Partner, Office of State Personnel, 1331 Mail Service
Center, Raleigh, NC 27699-1331. The public comment period
will end on March 19, 2012.
Comments may be submitted to: Mr. Ken Litowsky, Office of
State Personnel, 1331 Mail Service Center, Raleigh, NC 27699-
1331; phone (919) 807-4800; fax (919) 733-0653; email
ken.litowskyi@osp.nc.gov
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - OFFICE OF STATE PERSONNEL
SUBCHAPTER 01B - STATE PERSONNEL
COMMISSION
SECTION .0400 - APPEAL TO COMMISSION
25 NCAC 01B .0436 SETTLEMENTS/CONSENT
AGREEMENTS IN GRIEVANCES, CONTESTED CASES
(a) Any settlement or consent agreement in a grievance or
contested case which requires the processing of personnel action
forms by the Office of State Personnel input of data into
BEACON must be approved by the Office of State Personnel
before such personnel action forms will be processed. Approval
by the Office of State Personnel shall be indicated by the
signature of the State Personnel Director or his designee in an
appropriate place on the settlement or consent agreement. This
provision shall not be construed to require Office of State
Personnel approval of a settlement in which the only portion
requiring approval is the awarding of attorney's fees to the
employee's attorney by the State Personnel Commission. This
provision shall also not be construed to require approval of any
settlement the terms of which allow an employee to substitute a
resignation for a dismissal and to withdraw a grievance or a
contested case action.
(b) The provisions of 25 NCAC 01A .0104 (EXCEPTIONS
AND VARIANCES) must be complied with when any provision
of a settlement or consent agreement in a grievance or contested
case requires an exception to or variance from existing personnel
policy. This compliance shall be in addition to the requirements
of this Rule. Any settlement or consent agreement which
contains a provision which requires an exception to or variance
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1021
from existing personnel policy must be reviewed and approved
by the State Personnel Commission prior to the processing of
any personnel action forms by the Office of State Personnel.
(c) Personnel action forms, Requests to input data into the
State's human resources and payroll system which are required
by the provisions of any settlement or consent agreement which
has not been approved by the Office of State Personnel or the
State Personnel Commission as required by this Rule, shall not
be processed by the Office of State Personnel BEACON and
shall be returned to the agency without action.
(d) Any settlement or consent agreement which does not require
action by the Office of State Personnel or the State Personnel
Commission BEACON or which falls within the exception set
forth in Paragraph (a) of this Rule does not require the approval
of either body to be effective.
Authority G.S. 126-4.
25 NCAC 01B .0437 STATE PERSONNEL
COMMISSION: PROCEDURES
(a) The rule applies to contested cases commenced prior to
January 1, 2012.
(b)(a) The State Personnel Commission Administrator, on
behalf of the State Personnel Commission, shall receive the
record in the contested cases forwarded by the Office of
Administrative Hearings and the State Personnel Commission
shall make a final administrative decision in the case. Any
record received by the Administrator on the day of a
Commission meeting shall be deemed to have been received
after the Commission meeting and the time in which the
Commission has to review and decide the case shall run from the
Commission meeting. The Office of State Personnel shall be
responsible for the administrative management of contested
cases coming before the Commission for its review and decision.
(c)(b) Oral Argument. Either party to a contested case may
request the opportunity to appear before the State Personnel
Commission and make oral argument in all cases. Such
arguments shall be based solely on the information contained in
the record submitted by the OAH. Oral arguments shall be
requested or waived in writing no more than 10 calendar days
after the filing date of the decision of the Administrative Law
Judge and the parties shall attach a copy of the Administrative
Law Judge's decision to the request or waiver. After the
Commission has received either a request or waiver of oral
argument from the parties, the Commission shall send a notice of
review which shall contain the date, time and place of the
Commission meeting at which the case may be reviewed. If a
party has failed to request or waive oral argument in a timely
fashion, that party may not be allowed to present oral argument
or file legal briefs or memoranda to the Commission. Each party
requesting oral argument shall be allotted a maximum of 10
minutes for the presentation, unless the time period is extended
by a vote of the Commission. Time may be extended by the
Commission for good cause shown as defined in 25 NCAC 01B
.0439. All requests to speak for more than 10 minutes shall be
made in writing in the same document which requests the
opportunity to make oral argument. The party which did not
prevail before the Administrative Law Judge is entitled to make
the first oral argument and to present a rebuttal. If both parties
are seeking changes in the Administrative Law Judge's decision,
both parties may present a rebuttal and the party with the burden
of proof in the contested case is entitled to the last rebuttal.
(d)(c) Briefs, Legal Memoranda, Attorney's Fees Requests. All
briefs and legal memoranda in cases other than those arising
under G.S. 14.4 shall be received by the Office of State
Personnel no later than 30 calendar days after the filing date of
the decision of the Administrative Law Judge. Such document
shall also be served upon the opposing party and a copy of the
decision of the Administrative Law Judge shall be attached to
the document. Such a document received after the deadline shall
be presented to the Commission only after the party has shown
that the opposing party was served with the document no later
than 30 calendar days after the filing date of the decision of the
Administrative Law Judge. Attorney's fees requests must be
presented to the Commission by the prevailing party to a
Commission Decision and Order at least one month before the
meeting at which the matter is to be considered. Such requests
must also be served upon the opposing party. The Commission
shall notify the parties upon receipt of a request for attorneys
fees and provide an opportunity for the opposing party to file
objections to the fees requested. If the parties wish to make oral
argument on an attorney's fees request, a request for oral
argument must be received by the Office of State Personnel
within two weeks after the filing of the attorney's fees request
and at least one month prior to the meeting at which such oral
argument is requested. Parties shall submit 25 copies of each
pleading (with three holes in the left margin) filed with the
Commission. An extension of time to file documents with the
Commission may be granted by the Administrator for good
cause shown as defined in 25 NCAC 01B .0439.
(e)(d) Written Exceptions. Proposed Alternative Findings,
Conclusions and Recommendations. Each party shall submit
written exceptions to the decision of the Administrative Law
Judge, unless the party accepts the decision in its entirety. Any
party may choose to submit proposed alternative findings of fact
and conclusion of law. Exceptions and alternative findings of
fact and conclusions shall be received by the Office of State
Personnel no later than 30 calendar days after the filing date of
the decision of the Administrative Law Judge. Written
exceptions shall be specifically drawn. Each exception and
proposed alternative finding or conclusion shall specifically,
separately, and in detail, set forth how the finding or conclusion
is clearly contrary to the preponderance of the admissible
evidence, the specific reason(s) the Commission should not
adopt the Administrative Law Judge's finding of fact or
conclusion of law and the specific evidence in the record which
supports the rejection of the Administrative Law Judge's finding
of fact or conclusion of law, including but not limited to
references to the testimony of witnesses, any evidentiary
exhibits, and any exercise of discretion by the agency to which
deference should be accorded. Any new findings of fact
proposed to the Commission must be supported by a
preponderance of the evidence which shall be set forth in
support of the new finding of fact. Any new decision proposed
to the Commission must be supported by a preponderance of the
admissible evidence in the record and the reason that the
Administrative Law Judge's decision is clearly contrary to the
preponderance of the admissible evidence in the record must be
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1022
set forth in detail. If the Administrative Law Judge has
recommended granting summary judgment or judgment on the
pleadings and a party proposes that the Commission reject the
Administrative Law Judge's decision, the party shall set forth the
basis for rejecting the Administrative Law Judge's decision in
detail. Reference must be made to the transcript (and volumes,
where applicable), if the transcript of the hearing was made and
is available. Where a party excepts to a finding, conclusion, or
recommendation and requests its deletion or amendment, an
alternative finding, conclusion, or recommendation shall be
made. Such a document received after the deadline shall be
presented to the Commission only after the party has shown that
the opposing party was served with the document no later than
30 calendar days after the filing date of the Administrative Law
Judge's decision. The Commission may adopt the findings of
fact and conclusions of law of the Administrative Law Judge, or
amend the same, or adopt alternative findings of fact and
conclusion of law, either from those submitted by the parties or
drawn from its own review of the whole record. Parties shall
submit 25 copies of each pleading (with three holes in the left
margin) filed with the Commission. An extension of time to file
documents with the Commission may be granted by the
Administrator for good cause shown as defined in 25 NCAC
01B .0439.
(f)(e) Proposed Decision and Order. Each party to a contested
case shall submit a proposed Decision and Order for
consideration by the Commission in that case. The proposed
Decision and Order shall be received by the Office of State
Personnel no later than 30 calendar days after the filing date of
the decision of the Administrative Law Judge. The Commission
may delay decision in a case until all parties have submitted a
proposed Decision and Order. The Proposed Decision and
Order shall indicate which findings, conclusions, and
recommendations of the Administrative Law Judge are being
deleted or amended and why, and specifically, separately, and in
detail, set forth how the finding or conclusion is clearly contrary
to the preponderance of the admissible evidence. The Proposed
Decision and Order must include the specific reason(s) the
Commission should not adopt the Administrative Law Judge's
finding of fact or conclusion of law and the specific evidence in
the record which supports the rejection of the Administrative
Law Judge's finding of fact or conclusion of law, including but
not limited to references to the testimony of witnesses, any
evidentiary exhibits, and any exercise of discretion by the
agency to which deference should be accorded. Any new
findings of fact proposed to the Commission must be supported
by a preponderance of the evidence which shall be set forth in
support of the new finding of fact in the Proposed Decision and
Order. Any new conclusions of law or decision proposed to the
Commission must be supported by a preponderance of the
admissible evidence in the record and the reason that the
Administrative Law Judge's decision is clearly contrary to the
preponderance of the admissible evidence in the record must be
set forth in detail in the Proposed Decision and Order. If the
Administrative Law Judge has recommended granting summary
judgment or judgment on the pleadings and a party proposes that
the Commission reject the Administrative Law Judge's decision,
the party shall set forth the basis for rejecting the Administrative
Law Judge's decision in detail in the Proposed Decision and
Order. The proposed Decision and Order shall contain an order
in the case for the signature of the Administrator to the
Commission, consistent with and supported by the findings and
conclusions. Parties shall submit 25 copies of each pleading
(with three holes in the left margin) filed with the Commission.
An extension of time to file documents with the Commission
may be granted by the Administrator for good cause shown as
defined in 25 NCAC 01B .0439.
(g)(f) Service on Opposing Parties. Copies of all documents
permitted or required by this Rule shall be served on the
opposing party, but no later than 30 calendar days after the filing
date of the decision of the Administrative Law Judge. If a
document is filed electronically with the Commission as
permitted in 25 NCAC 01B .0437(h), the document must also be
served electronically on the opposing party if the opposing party
has an electronic address. Electronic service must be followed
by service of printed copies of any document filed electronically
within 24 hours of electronic filing.
(h)(g) Notification. The parties or when applicable, the legal
representative of record for a party, shall be notified by certified
mail, return receipt requested, of the Commission's decision.
The Commission's decision shall be prepared and sent out by the
Office of State Personnel. Copies or the content of a specific
decision and order shall not be released to non-parties until the
Office of State Personnel has knowledge that all parties have
received a copy of the Decision and Order.
(i)(h) Electronic Filing. Any documents which are required or
permitted to be filed under 25 NCAC 01B .0437, may be filed
electronically by midnight of the filing date with the State
Personnel Commission Administrator in a format readable by
the Administrator. Printed copies of any documents filed
electronically must also be filed with the Administrator in
accordance with 25 NCAC 01B .0437(c), (d) and (e) within 24
hours of the electronic filing.
Authority G.S. 126-4.
25 NCAC 01B .0438 ESTABLISHMENT OF
REASONABLE ATTORNEY FEES BY THE
COMMISSION
(a) This Paragraph applies to contested cases commenced prior
to January 1, 2012.
(1) The Commission shall award the
reimbursement of legal fees and costs as
follows:
(A)(1) Attorney fees incurred in connection
with the contested case proceeding
before the Commission and with any
successful appeal of a Commission
decision in the General Courts of
Justice at a reasonable hourly rate
based on the prevailing market rate
but at a rate no higher than the fee
agreement between the parties;
(B)(2) Law Clerk, Paralegal, or Legal
Assistant fees at a reasonable hourly
rate based on the prevailing market
rate but at a rate no higher than the
fee agreement between the parties;
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1023
(C)(3) Travel time at a maximum rate of
one-half the applicable hourly
attorney or legal support staff fee
rate;
(D)(4) Costs at the actual cost.
(2) Fees shall not be awarded unless requested by
an attorney or the Petitioner and documented
by an itemized, per activity, accounting of the
hours expended, in addition to a copy of the
fee agreement between the parties and any
relevant receipts or other documentation of
prior payment.
(b) This Paragraph applies to contested cases commenced on or
after January 1, 2012.
(1) The Commission shall award the
reimbursement of legal and witnesses' fees and
costs as follows:
(A) Attorney fees incurred in connection
with the contested case proceeding
before the Office of Administrative
Hearings (OAH) and with any
successful appeal of an OAH decision
in the General Courts of Justice at a
reasonable hourly rate based on the
prevailing market rate but at a rate no
higher than the fee agreement
between the parties;
(B) Law Clerk, Paralegal, or Legal
Assistant fees at a reasonable hourly
rate based on the prevailing market
rate but at a rate no higher than the
fee agreement between the parties;
(C) Travel time at a maximum rate of
one-half the applicable hourly
attorney or legal support staff fee
rate; or
(D) Costs at the actual cost.
(2) Fees shall not be awarded unless requested by
an attorney or the Petitioner and documented
by an itemized, per activity, accounting of the
hours expended, in addition to a copy of the
fee agreement between the parties and any
relevant receipts or other documentation of
prior payment.
(3) An agency and a petitioner may jointly submit
a request to the State Personnel Commission to
award attorney's fees, witnesses' fees, and
costs in a case where a case arising under
Chapter 126 has been settled either at the
agency level prior to a contested case hearing
in OAH or resolved at the agency level, the
assessment of reasonable attorneys' fees and
witnesses' fees against the State agency
involved.
Authority G.S. 126-4(11).
* * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Personnel Commission intends to amend the rules cited
as 25 NCAC 01D .0303, .0308, .0605, .0611, .0808 and repeal
the rules cited as 25 NCAC 01D .0107, .0403, .1205; 01E .0102.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.osp.state.us/rtable.comm/spc.htm
Proposed Effective Date: June 1, 2012
Public Hearing:
Date: March 19, 2012
Time: 10:00 a.m.
Location: Third Floor Conference Room, Administration
Building, 116 West Jones Street, Raleigh, NC 27603
Reason for Proposed Action:
25 NCAC 01D .0107, .0403, .1205 – These rules are being
repealed because they are unnecessary.
25 NCAC 01D .0303, .0308, .0605 – These rules are proposed
to be amended in order to reflect the processes that have
changed in State government as a result of the implementation of
electronic processing of personnel actions.
25 NCAC 01D .0611, .0808 – These rules are proposed to be
amended in order to reflect the deletion of the reference to the
hiring rate. A "hiring rate" no longer exists on the State salary
schedule.
25 NCAC 01E .0102 – This rule is unnecessary and repetitive.
Procedure by which a person can object to the agency on a
proposed rule: A public hearing will be held on March 19,
2012 at 10:00 a.m. The hearing will be held in the third floor
conference room, Administration Building, 116 West Jones
Street, Raleigh, NC. The purpose of the hearing is to receive
oral and written comments/objections regarding the proposed
action of the following rules: 25 NCAC 01D .0107, .0403,
.1205, .0303, .0308, .0605, .0611, .0808; and 01E .0102.
Written comments/objections not submitted during the public
hearing should be sent to: Ms. Shari G. Howard, Human
Resources Partner, Office of State Personnel, 1331 Mail Service
Center, Raleigh, NC 27699-1331. The public comment period
will end on March 19, 2012.
Comments may be submitted to: Ms. Shari G. Howard, Office
of State Personnel, 1331 Mail Service Center, Raleigh, NC
27699-1331; phone (919) 807-4800; fax (919) 733-0653; email
shari.g.howard@osp.nc.gov
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1024
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - OFFICE OF STATE PERSONNEL
SUBCHAPTER 01D - COMPENSATION
SECTION .0100 - ADMINISTRATION OF THE PAY
PLAN
25 NCAC 01D .0107 CROSS HIRING
It is necessary that the practice of cross hiring in state
government be carefully controlled. Such arrangements must
take into consideration such factors as the character of the
services to be performed, the effect on the morale of other state
employees, the ethical considerations involved, the temporary
loss of the services of the individual to the parent agency, the
possible reduced efficiency of the individual as a result of
fatigue or inattention to primary responsibilities, the urgency of
the situation, possible alternative arrangements and other
pertinent factors.
Authority G.S. 126-4.
SECTION .0300 - PROMOTION
25 NCAC 01D .0303 EFFECTIVE DATE
(a) Permanent promotions shall be made effective on the first
day of the pay period. Such requests cannot be made effective
earlier than the first day of the following month when received
after the tenth of the month.
(a)(b) The required A promotional increase shall be given on the
effective date of the a promotion, unless a specific salary
limitation is published in advance.
(b)(c) If the desired amount of increase is not given on the
effective date of the promotion, an additional increase(s), up to
the full allowable amount, may be given at a later date(s) on a
current basis. Additional increases are limited to two
occurrences after the initial promotional increase and must be
awarded within 24 months of the original effective date of the
action. If a subsequent promotion, reallocation up or down,
demotion or reassignment occurs, this cancels the authorization
to grant additional increases as a result of the previous
promotion. If increases are to be given at later dates, a notation
must be entered on the form in the comments section on the
personnel action stating the reason the increase is being delayed
and showing the dollar amount of the allowable increase, the
amount given, and the balance that may be given later. The
personnel actions submitted later must state "Promotional
Increase" in the description of action block, which will denote
that this is a delayed increase.
(c)(d) If no additional increase is to be given at a later date, no
notation is necessary.
(d)(e) Temporary promotions may be made effective on the date
that an employee is officially placed in an "acting" capacity.
Authority G.S. 126-4.
25 NCAC 01D .0308 SALARY INCREASES
The purpose of a promotional pay increase is to reward the
employee for the assumption of duties more responsible and
more difficult than those in the current position. Subject to the
availability of funds, salary increases, not to exceed the
maximum of the range, may be given in accordance with the
following:
(1) Permanent Promotion:
(a) Salaries at the hiring rate shall be
increased to the new hiring rate.
(a)(b) Salaries at the minimum rate or
within the range shall be increased to
the new minimum rate of the grade to
which promoted or by five percent,
whichever is larger. Exceptions:
(i) A promotional increase is
not required if a specific
salary rate or limitation is
published in advance of a
promotional offer because of
internal salary equity or
budget considerations in the
receiving work unit or
agency. If this occurs, a
salary increase above the
salary rate posted may not be
paid. If conditions change
that eliminate the equity
problem or if additional
funds become available that
can be used for this purpose,
agency management may
consider an additional
increase in accordance with
the provisions outlined under
Rule .0303 of this Section.
(ii) If the employee's salary is
above the maximum as a
result of a reallocation down,
no increase can be given, but
the salary may remain above
the maximum.
(b)(c) If the employee is promoted to a
position within the same class series
or occupational group:
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1025
(i) the salary may be increased
by up to five percent for
each grade provided by the
promotion, or
(ii) the salary may be
established in accordance
with the rules at 25 NCAC
01D .0200, New
Appointments.
(c)(d) If the employee is promoted to a
position in a different occupational
area, the salary may be established in
accordance with the rules at 25
NCAC 01D .0200, New
Appointments. The nature and
magnitude of the change in jobs, the
need to maintain equity of salaries
within the work unit, and other
management needs must be given
consideration when making salary
decisions. Agency management is
responsible for assuring that
inequities are not created. When
establishing salaries in accordance
with 25 NCAC 01D .0200, the
personnel action forms the comments
section of the personnel action must
include the justification for the salary
decision. If an employee has been
reduced to a lower salary grade
through demotion, reassignment,
reallocation or salary range revision,
but without a corresponding reduction
in salary, and the employee is later
promoted to a position with a higher
grade, the number of grades in the
original reduction shall be considered
to have been compensated and shall
not be considered in the salary setting
procedure in this Rule. If the
reduction in grade occurred as much
as 12 months previously, the agency
may give consideration to granting a
salary increase within the provisions
of this policy. Factors to be
considered are the nature of the
change in jobs and the need to
maintain equity of salaries within the
work unit.
(d)(e) Only with the prior approval of the
State Personnel Director and only in
well-documented cases which involve
circumstances such as severe labor
market conditions, unusual change in
the scope of work, extraordinary
qualifications, or resolution of serious
equity problems will salary increases
above that allowed by the provisions
in this Sub-item be considered.
Personnel forms The comments
section on the personnel action must
include the justification.
(e)(f) If the employee is to receive a
performance salary increase on the
same date as the promotion, the
increase may be given before the
promotional increase.
(f)(g) If an employee is promoted from a
class for which there is no special
entry rate into a class which has a
special entry rate, the employee's
salary may be increased by the
amount of the promotional increase
plus the percent difference between
the minimum and the special entry
rate authorization.
(2) Temporary Promotion:
(a) Temporary promotions may be made
when an employee is placed in an
"acting" capacity for a period of time.
When an employee is placed in an
"acting" capacity, at the discretion of
management, one of the following
may occur:
(i) The employee may be
placed in the higher level
position (if vacant) with an
understanding that he will
return to the former position
and salary when the position
is filled.
(ii) A salary adjustment may be
given in the present position
with the understanding that
the salary will be decreased
when the "acting" capacity
terminates. Indicate in
Section 21 of the PD-105
The comments section of the
personnel action must
include the position number
and classification for which
the employee is serving in an
as "acting" capacity. Also
include and the expected
duration of "acting"
capacity.
(b) The provisions for salary increases
for permanent promotions apply in
either case, except that the provision
for a mandatory increase may not be
applicable.
(c) The length of time that an employee
is in an acting capacity should be
limited, and the amount of
promotional salary increase
determined by the degree of
assumption of the higher level duties.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1026
Authority G.S. 126-4.
SECTION .0400 - DEMOTION OR REASSIGNMENT
25 NCAC 01D .0403 EFFECTIVE DATE
Demotions or reassignments shall be made effective on the first
day of the pay period.
Authority G.S. 126-4.
SECTION .0600 - REALLOCATION
25 NCAC 01D .0605 EFFECTIVE DATE
(a) Reallocations shall be made effective on the first day of the
pay period. Forms PD-118 A request to reallocate a position
should be submitted to the Office of State Personnel 30 days
prior to the proposed effective date to allow adequate time for
study and processing of the requests. Requests received after the
first day of the month are subject to be made effective no earlier
than the first of the following month and requests can be
effective only after complete information is available to make a
decision. If any party is delayed in carrying out its
responsibilities, the employee should not be caused to suffer
delay and the effective date will be revised to the most
reasonable date consistent with the time that complete
information would have been available to make the decision on
reallocation of the position.
(b) Salary increases to the minimum rate (or hiring, if
applicable) shall be given on the effective date of the
reallocation. If funds are not available, the increase shall be
given from the first available funds and made retroactive to the
effective date of the reallocation. reallocation, so long as a
notation is entered on the comments section of the personnel
action at the time the reallocation occurs. Employees who are
denied increases because of poor performance may receive the
increase on a current basis if/when the performance becomes
satisfactory. issue is resolved and a notation should be entered
on the comments section of the personnel action at the time of
the reallocation indicating that a review of performance will take
place on or before a specific date in the future.
(c) Salary increases within the range are optional and, if
recommended, should be given on the effective date of the
reallocation. If the desired amount of increase is not given on the
effective date because of unavailable funds, equity
considerations or performance, the increase(s), up to the full
allowable amount, may be given at a later date(s) on a current
basis. basis, so long as the required notation is entered on the
comments section of the personnel action at the time of the
reallocation. Total increases are limited to three occurrences and
must be awarded within 24 months of the original effective date
of the action. If a subsequent promotion, reallocation up or
down, demotion or reassignment occurs, this cancels the
authorization to grant additional increases as a result of the
previous reallocation.
(d) If increases are to be given at later dates, a notation must be
entered on the form in the comments section of the personnel
action stating the reason the increase is being delayed and
showing the dollar amount of the allowable increase, the amount
given, and the balance that may be given later. The personnel
actions submitted later must state "Reallocation Increase" in the
description of action block, which will denote that this is a
delayed salary increase. If no increase is to be given at a later
date, no notation is necessary. necessary at the time of the
reallocation.
Authority G.S. 126-4.
25 NCAC 01D .0611 REALLOCATION/SALARY
RATE
(a) When an employee's position is assigned to a higher grade as
a result of reallocation, subject to the availability of funds and
satisfactory employee performance, salary increases, not to
exceed the maximum of the range, may be given in accordance
with the following:
(1) Salaries at the hiring rate shall be increased to
the new hiring rate.
(1)(2) Salaries at the minimum rate shall be increased
to the minimum rate of the new range, and
may be increased further in accordance with
Paragraph (3) of this Rule.
(2)(3) If it is determined that a salary increase is
justified, with the exception of Paragraph (b)
of this Rule, the salary shall be established as
follows:
(A) in accordance with the rules for New
Appointments (See 25 NCAC 01D
.0200), or
(B) up to five percent for each grade
provided by the reallocation, if
reallocated to a position within the
same classification series or
occupational group.
The amount of increase shall be determined consistent with the
employee's related training and experience and the nature and
magnitude of the change in jobs, and take into consideration
prior performance increases, work unit equity, and any other
salary related considerations. When establishing salaries in
accordance with the New Appointment Rules (See 25 NCAC
01D .0200), the personnel action forms must include the
justification for the salary decision.
(b) If an employee has been reduced to a lower salary grade
through demotion, reassignment, reallocation or salary range
revision, but without a corresponding reduction in salary, and
within 12 months of the reduction the employee is reallocated:
(1) The employee shall not be entitled to a
reallocation increase unless the reallocation is
to a grade higher than the grade held prior to
the reduction.
(2) If reallocated to a higher grade, the number of
grades in the original reduction shall be
considered to have been compensated and
shall not be considered in setting the salary
pursuant to Part (a)(3)(B) of this Rule.
(Example: If an employee is demoted with no change in salary
and reallocated back to the same level, the salary shall remain
unchanged and treated as if the demotion had not occurred; or if
reallocated back to a level higher than before the demotion, the
difference in the grade before the demotion and the new higher
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1027
grade will be the basis for determining the reallocation increase.)
Agency management is responsible for assuring that inequities
are not created.
(c) Only with the prior approval of the State Personnel Director
and in circumstances relating to critical positions and
well-documented labor market conditions will salary increases
be considered which equate to more than five percent for each
grade provided by the reallocation. Personnel forms must
include the justification.
(d) If the employee is to receive a performance salary increase
on the same day as the reallocation, the performance increase
shall be given before a reallocation increase is considered.
(e) When an employee's position is assigned to a lower grade,
one of the following options will be implemented:
(1) When reduction in level of the position results
from management's removal of duties and
responsibilities from the employee because of
change in demonstrated motivation, capability,
acceptance of responsibility, or lack of
performance, the effect is the same as a
demotion and the salary must be reduced at
least to the maximum as required by the policy
on demotion.
(2) When reduction in level of the position results
from position redesign because of
management decisions on program changes,
reorganization, or other management needs not
associated with the employee's demonstrated
motivation, capability, acceptance of
responsibility or lack of performance, the
salary of the employee may remain above the
new maximum as long as the employee
remains in the same classification or is
promoted to a higher level position. No
further increases, other than legislative
increases, may be granted as long as the salary
remains above the maximum.
(3) When reduction in level of the position results
from a change in the labor market or some
other reason not related to change in the duties
and responsibilities of the position, though the
position must be reallocated to the approved
classification and grade, management may
elect to maintain the employee's current
classification and grade by working the
employee against the lower level position, so
long as the employee continues to occupy the
same position or is in the same classification.
(4) Once the position is vacated, it shall be filled
at the lower level.
(f) It is a management responsibility to avoid creation of salary
inequities among employees. Each case must be evaluated to
determine which of the salary administration alternatives is most
appropriate, based on the circumstances as documented to the
Office of State Personnel, on appropriate forms, by the
employing agency.
(g) When an employee's position is assigned to the same grade
level, the employee's salary shall remain unchanged.
Authority G.S. 126-4.
SECTION .0800 - INITIAL CLASSIFICATION
25 NCAC 01D .0808 SALARY RATE
(a) If the employee is given probationary status and the salary is
below the hiring minimum rate for the range assigned, it shall be
adjusted to the new hiring minimum rate. If the employee is
given a permanent or time-limited permanent appointment and
the salary is below the minimum rate, it shall be adjusted to the
minimum rate of the range assigned.
(b) If the employee's salary falls within the range assigned to the
position, it shall remain unchanged.
Authority G.S. 126-4.
SECTION .1200 - LONGEVITY PAY
25 NCAC 01D .1205 AGENCY RESPONSIBILITY
Each state agency head shall be responsible for determining the
quantity of qualifying service of each employee of that agency.
When an employee is eligible for longevity pay, the agency head
shall submit Form PD 135 for payment and certify the length of
qualifying service to the Office of State Personnel.
Authority G.S. 126-4.
SUBCHAPTER 01E - EMPLOYEE BENEFITS
SECTION .0100 - LEAVE: GENERAL PROVISIONS
25 NCAC 01E .0102 TYPES OF LEAVE
Various types of leave recognized by the State Personnel
Commission are set up in Sections .0200 to .1600 of this
Subchapter. They are: vacation leave, sick leave, workers'
compensation leave, military leave, holidays, miscellaneous
leave, voluntary shared leave, family and medical leave,
community service leave, and leave without pay.
Authority G.S. 126-4; 126-8.
TEMPORARY RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1028
Note from the Codifier: The rules published in this Section of the NC Register are temporary rules reviewed and approved by the
Rules Review Commission (RRC) and have been delivered to the Codifier of Rules for entry into the North Carolina Administrative
Code. A temporary rule expires on the 270th day from publication in the Register unless the agency submits the permanent rule to the
Rules Review Commission by the 270th day.
This section of the Register may also include, from time to time, a listing of temporary rules that have expired. See G.S. 150B-21.1
and 26 NCAC 02C .0500 for adoption and filing requirements.
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Rule-making Agency: Department of Health and Human
Services/Division of Health Service Regulation
Rule Citation: 10A NCAC 14D .0101-.0102, .0201-.0219,
.0301-.0303, .0401-.0402, .0501-.0502, .0601-.0603, .0701,
.0801
Effective Date: January 1, 2012
Date Approved by the Rules Review Commission: December
15, 2011
Reason for Action: The Department of Health and Human
Services was directed to pilot an overnight respite program in
facilities that offer adult day care by Senate Bill 512 in Session
Law 2011-104. These temporary rules are being proposed in
response to this act by the General Assembly with the
establishment of a new Subchapter entitled "Overnight Respite
in Certified Adult Day Care Programs."
CHAPTER 14 – DIRECTOR, DIVISION OF HEALTH
SERVICE REGULATION
SUBCHAPTER 14D - OVERNIGHT RESPITE IN
CERTIFIED ADULT DAY CARE PROGRAMS
SECTION .0100 – SCOPE AND DEFINITIONS
10A NCAC 14D .0101 SCOPE
This Subchapter sets forth rules for certified adult day care
programs offering overnight respite services pursuant to S.L.
2011-104.
History Note: Authority S.L. 2011-104;
Temporary Adoption Eff. January 1, 2012.
10A NCAC 14D .0102 DEFINITIONS
The following definitions apply throughout this section
Subchapter:
(1) "Adult day care program" means a facility
certified by the Department of Health and
Human Services, Division of Aging and Adult
Services pursuant to G.S. 131D-6.
(2) "Overnight respite services" means services
that consist of 24-hour supervision and
personal care services provided for persons on
a temporary basis for caregiver relief, not to
exceed 14 consecutive days or no more than
60 total calendar days in a 365-day period and
is provided by an adult day care program.
(3) "Personal care" means tasks such as assistance
with personal hygiene and grooming, feeding,
ambulation and other health care needs.
(4) "Resident" means the recipient of the
overnight respite services.
(5) "Supervision" means visual monitoring of
residents to determine the need for assistance.
History Note: Authority S.L. 2011-104;
Temporary Adoption Eff. January 1, 2012.
SECTION .0200 – PHYSICAL PLANT RULES
10A NCAC 14D .0201 SUBMISSION OF
INFORMATION TO THE DIVISION OF HEALTH
SERVICE REGULATION CONSTRUCTION SECTION
(a) Prior to operation, an applicant for overnight respite services
shall submit the following forms and reports to the Division of
Health Service Regulation (DHSR) Construction Section:
(1) an approval letter from the local zoning
jurisdiction for the proposed location;
(2) a photograph of each side of the existing
structure and at least one of each of the interior
spaces if an existing structure; and
(3) a set of blueprints of each level indicating the
layout of all rooms, room dimensions
(including closets), door widths (exterior,
bedroom, bathroom and kitchen doors),
window sizes and window sill heights, type of
construction, the proposed resident bedroom
locations including the number of occupants in
each bedroom.
(b) The Construction Section shall review the information and
notify the applicant in letter of required changes that must be
made to the building to meet the rules of this Section along with
the North Carolina State Building Code. The letter shall also
contain a list of final documentation required from the local
jurisdiction that must be submitted upon completion of any
required changes to the building or completion of construction.
(c) Any changes made during construction that were not
proposed during the initial review shall require the approval of
the Construction Section to assure physical plant rule
requirements are met.
(d) Upon receipt of the required final documentation from the
local jurisdiction, the Construction Section shall review the
information and may either make an on-site visit or approve the
overnight respite services for construction by documentation. If
all items are met, the Construction Section shall notify the
TEMPORARY RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1029
DHSR Adult Care Licensure Section of its recommendation for
approval.
(e) Following review of the application, references, all forms
and the Construction Section's recommendation for use, a pre-approval
visit shall be made by a consultant of the DHSR Adult
Care Licensure Section. The consultant shall report findings and
recommendations to the Adult Care Licensure Section which
shall notify, in writing, the Division of Aging and Adult Services
and the applicant of the decision to approve or deny overnight
respite services as a part of the adult day care program that is
planning to provide the services.
History Note: Authority S.L. 2011-104;
Temporary Adoption Eff. January 1, 2012.
10A NCAC 14D .0202 CAPACITY
(a) The capacity of the overnight respite services shall not be
approved for more than six residents. The Department shall not
approve a capacity for an overnight respite service of more than
six residents.
(b) The total number of residents shall not exceed the capacity
approved by the Construction Section.
(c) A request for an increase in capacity by adding rooms,
remodeling or without any building modifications shall be
submitted to the Construction Section, accompanied by two
copies of blueprints or floor plans. One of the plans shall show
the existing building with the current use of rooms and the
second plan shall indicate the addition, remodeling or change in
use of spaces showing the use of each room. If new construction,
plans shall show how the addition will be tied into the existing
building and all proposed changes in the structure.
(d) When the overnight respite services program increases its
designed capacity by the addition to or remodeling of the
existing physical plant, the entire program shall meet all current
fire safety regulations.
History Note: Authority S.L. 2011-104;
Temporary Adoption Eff. January 1, 2012.
10A NCAC 14D .0203 DESIGN AND CONSTRUCTION
(a) Any adult day care program intending to provide overnight
respite services for the first time shall meet the applicable
requirements of the North Carolina State Building Code. All
new

This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 26 ● ISSUE 14 ● Pages 1005 - 1059
January 17, 2012
I. EXECUTIVE ORDERS
Executive Order No. 112 ................................................................................ 1005
II. IN ADDITION
COPA – Correction to Third Amended COPA ............................................... 1006
III. PROPOSED RULES
Commerce, Department of
Department ...................................................................................................... 1007 – 1015
Justice, Department of
Private Protective Services Board ................................................................... 1015 – 1016
Occupational Licensing Boards and Commissions
Hearing Aid Dealers and Fitters Board ........................................................... 1016 – 1018
Social Work Certification and Licensure Board ............................................. 1018 – 1019
State Personnel, Office of
State Personnel Commission ........................................................................... 1020 – 1027
IV. TEMPORARY RULES
Administrative Hearings, Office of
Administrative Hearings, Office of ................................................................. 1040 – 1042
Environment and Natural Resources, Department of
Environmental Management Commission ...................................................... 1037 – 1039
Wildlife Resources Commission ..................................................................... 1039 – 1040
Health and Human Services, Department of
Health Service Regulation, Division of ........................................................... 1028 – 1037
V. RULES REVIEW COMMISSION ................................................................. 1043 – 1054
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 1055 – 1059
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071
Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075
Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073
Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081
Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079
Fiscal Notes & Economic Analysis and Governor's Review
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919) 807-4740
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Erin L. Wynia ewynia@nclm.org
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net
Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2012 – December 2012
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
26:13 01/03/12 12/08/11 01/18/12 03/05/12 03/20/12 05/01/12 05/16/12 09/29/12
26:14 01/17/12 12/21/11 02/01/12 03/19/12 03/20/12 05/01/12 05/16/12 10/13/12
26:15 02/01/12 01/10/12 02/16/12 04/02/12 04/20/12 06/01/12 01/30/13 10/28/12
26:16 02/15/12 01/25/12 03/01/12 04/16/12 04/20/12 06/01/12 01/30/13 11/11/12
26:17 03/01/12 02/09/12 03/16/12 04/30/12 05/21/12 07/01/12 01/30/13 11/26/12
26:18 03/15/12 02/23/12 03/30/12 05/14/12 05/21/12 07/01/12 01/30/13 12/10/12
26:19 04/02/12 03/12/12 04/17/12 06/01/12 06/20/12 08/01/12 01/30/13 12/28/12
26:20 04/16/12 03/23/12 05/01/12 06/15/12 06/20/12 08/01/12 01/30/13 01/11/13
26:21 05/01/12 04/10/12 05/16/12 07/02/12 07/20/12 09/01/12 01/30/13 01/26/13
26:22 05/15/12 04/24/12 05/30/12 07/16/12 07/20/12 09/01/12 01/30/13 02/09/13
26:23 06/01/12 05/10/12 06/16/12 07/31/12 08/20/12 10/01/12 01/30/13 02/26/13
26:24 06/15/12 05/24/12 06/30/12 08/14/12 08/20/12 10/01/12 01/30/13 03/12/13
27:01 07/02/12 06/11/12 07/17/12 08/31/12 09/20/12 11/01/12 01/30/13 03/29/13
27:02 07/16/12 06/22/12 07/31/12 09/14/12 09/20/12 11/01/12 01/30/13 04/12/13
27:03 08/01/12 07/11/12 08/16/12 10/01/12 10/22/12 12/01/12 01/30/13 04/28/13
27:04 08/15/12 07/25/12 08/30/12 10/15/12 10/22/12 12/01/12 01/30/13 05/12/13
27:05 09/04/12 08/13/12 09/19/12 11/05/12 11/20/12 01/01/13 01/30/13 06/01/13
27:06 09/17/12 08/24/12 10/02/12 11/16/12 11/20/12 01/01/13 01/30/13 06/14/13
27:07 10/01/12 09/10/12 10/16/12 11/30/12 12/20/12 02/01/13 05/2014 06/28/13
27:08 10/15/12 09/24/12 10/30/12 12/14/12 12/20/12 02/01/13 05/2014 07/12/13
27:09 11/01/12 10/11/12 11/16/12 12/31/12 01/22/13 03/01/13 05/2014 07/29/13
27:10 11/15/12 10/24/12 11/30/12 01/14/13 01/22/13 03/01/13 05/2014 08/12/13
27:11 12/03/12 11/07/12 12/18/12 02/01/13 02/20/13 04/01/13 05/2014 08/30/13
27:12 12/17/12 11/26/12 01/01/13 02/15/13 02/20/13 04/01/13 05/2014 09/13/13
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1005
IN ADDITION
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1006
Correction to Third Amended COPA
The Third Amended Certificate of Public Advantage, issued on August 31, 2011, is hereby corrected to remove language that was
inadvertently added. Other than as set forth herein, the provisions of the Third Amended COPA remain in full force and effect.
Provision 8.1, as corrected, is as follows:
8.1 Notwithstanding Section 6.1, Mission Health may employ or enter into exclusive contracts with no more than 30% of the
physicians in its primary service area of Buncombe and Madison Counties, except those practicing in the following areas:
cardiology, genetics, hospitalist, neuro-hospitalist, and neurology. This percentage limit shall apply to each area of practice.
In calculating this percentage, full-time residency faculty members employed by Mission Health shall be included, and
physicians whose primary employment is at Mission Health's community access clinics shall be excluded.
Department of Health and Human Services
Date: January 3, 2012
Drexdal R. Pratt, Director
Division of Health Service Regulation
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1007
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 04 – DEPARTMENT OF COMMERCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Department of Commerce intends to amend the rules cited as
04 NCAC 01I .0101, .0105 and repeal the rules cited as 04
NCAC 01J .0101-.0102, .0201, .0301, .0401, .0501; 01K .0202,
.0204, .0207; 14B .0109-.0116, .0211-.0220; 19L .1301-.1303;
20B .0402-.0403, .0901-.0902, .0904, .0906-.0907, .0909-.0911.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.nccommerce.com/rules
Proposed Effective Date: May 1, 2012
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice): A demand for a
public hearing shall be directed in writing to Tina A. Krasner at
NC Department of Justice, P.O. Box 629, Raleigh, NC 27602-
0629.
Reason for Proposed Action: All of these rules are obsolete.
Procedure by which a person can object to the agency on a
proposed rule: Objections to any of these rules shall be sent in
writing to Tina A. Krasner at NC Department of Justice, P.O.
Box 629, Raleigh, NC 27602-0629.
Comments may be submitted to: Tina A. Krasner, NC
Department of Justice, P.O. Box 629, Raleigh, NC 27602-0629.
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - DEPARTMENTAL RULES
SUBCHAPTER 01I – INDUSTRIAL DEVELOPMENT
FUND
SECTION .0100 – PURPOSE AND DEFINITIONS
04 NCAC 01I .0101 BACKGROUND AND
OBJECTIVES
(a) BASIC—The purpose of the North Carolina Industrial
Development Fund is to assist town, city or county governments
with incentive industrial financing in areas of the state that have
been designated as eligible tier areas by NC General Statutes.
This assistance is intended to help units of government offer to
its new and expanding industry, new or improved infrastructure,
or funds for building renovation and equipment in exchange for
commitments to create new, full-time jobs in industries currently
eligible under NC General Statutes. (The fund is not designed to
be used for the acquisition of land and buildings or constructing
new buildings.) If the assistance is used for infrastructure, it
shall be granted to local governments with no repayment;
however, if it is used to purchase equipment or to renovate
industrial buildings, then the funds must be repaid. But whether
a grant or a loan, the amount of funds to be made available for a
project shall be determined by the number of new jobs
committed, with a maximum job limit and project limit as
currently authorized for the program by NC General Statutes.
(b) EMERGENCY ECONOMIC DEVELOPMENT
ASSISTANCE - This special assistance from the Industrial
Development Fund is available to units of government that have,
or shall imminently experience, a loss of 500 or more
manufacturing jobs in the county, or a number of manufacturing
jobs equal to at least 10% of the manufacturing workforce in the
county. Where a unit of government relies on the 500 jobs loss
as the threshold for obtaining this special assistance, it must
submit convincing evidence that the loss seriously impacts the
county's economy, taking into account the county's tier ranking
under Rule .0701 of this Subchapter. The funding obtainable
under this emergency assistance category shall not necessarily
be determined by the number of new jobs to be created, although
the project should lead to new jobs, or save jobs, or both, and
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1008
help alleviate a jobs dislocation problem. The Secretary shall
determine the amount of funds for a project, up to the maximum
currently authorized for the program by NC General Statutes.
This assistance shall be in the form of a low interest loan to the
governmental unit, amortized over five years with repayment
beginning at the end of the second year.
(c) UTILITY ACCOUNT - Within the IDF structure, the Utility
Account provides financing to units of government for jobs
creation and investment in the tier area(s), and for benefiting
firms currently authorized by NC General Statutes. Funds may
be used for construction or improvements to water, sewer, gas,
or electrical utility lines and equipment for existing or proposed
industrial buildings. There is no specific amount of funding
specified for each new job or project, but the impact of the
funding should lead to the creation of new jobs and new
investment. As with basic IDF financing, if Utility Account
funds are spent for public property, the assistance shall be a
grant; for private property, it shall be a loan.
(d) CLEAN WATER BONDS PROCEEDS - Clean Water
bonds proceeds from the IDF shall be used to make grants to
local government units to pay the cost of clean water projects for
economic development with regard to the locating of industry to,
and the expansion of industry in the State. These funds shall be
administered in the manner permitted in the Basic IDF and the
Utility Account except the following limitations shall apply:
(1) The funds shall be used for grants; not loans.
(2) Grants shall be made only for projects that will
have a favorable impact on the clean water
objectives of the State.
(3) Projects shall be located in economically
distressed counties or those that have a
population of less than 50,000 determined
from the data derived at the time of the last
December ranking of economically distressed
counties.
(4) Grants may be made only with respect to the
industries specified by the Clean Water and
Natural Gas Critical Needs Bond Act of 1998
as amended.
(5) The water or sewer utility lines or facilities for
which bond funds are disbursed shall not
necessarily be located on the site of a building
or proposed building at which an industrial
activity occurs if the utility lines or facilities
will further the clean water objectives of the
State.
Authority G.S. 143B-437.01.
SUBCHAPTER 01J - NORTH CAROLINA JOBS TAX
CREDIT
SECTION .0100 - PURPOSE AND DEFINITIONS
04 NCAC 01J .0101 BACKGROUND AND
OBJECTIVES
G.S. 105-130.40 and G.S. 105-151.17, as amended, provide that
certain employers may be eligible for and may qualify for a
credit against the tax proposed by the North Carolina
Department of Revenue. This credit of two thousand eight
hundred dollars ($2,800) may be claimed when qualifying
full-time employees are added by an eligible employer in a
severely distressed county. The legislation sets out particular
responsibilities for two separate departments of State
Government; this Section is to set how the Department of
Commerce will conduct activities and responsibilities assigned
to it under this act.
Authority G.S. 105-130.40(a),(c) and (d); 105-151.17(a),(c) and
(d); Chapter 568, 1987 S.L.; Chapter 111 and 753, 1989 S.L.
04 NCAC 01J .0102 DEFINITIONS
(a) "Distress factor": a distress factor is defined as the sum of:
(1) the county's rank in a ranking of counties by
rate of unemployment from lowest to highest,
and
(2) the county's rank in a ranking of counties by
per capita income from highest to lowest.
(b) "Date of signing" shall be defined as the date on which the
Secretary of Economic and Community Development, his
designee, or the Commerce Finance Center receives and accepts
as complete, a commitment under Paragraph (d) of G.S.
105-130.40 and G.S. 105-151.17. Such a commitment will not
be so defined unless it is signed by a officer of the corporation or
by the taxpayer.
(c) "Department" means the North Carolina Department of
Economic and Community Development.
(d) "Eligible employer" is defined as a corporation or taxpayer
that is located or proposes to locate in a distressed county and
has received an approved "Determination of Eligibility" from the
Department of Economic and Community Development.
(e) "Full time employee" is defined as an employee who holds a
full time job.
(f) "Full time job" is defined as a position that is located in the
distressed county and requires at least 1600 hours of work per
year and is intended to be held by one person during the entire
year.
(g) "Letter of Commitment" is defined as an agreement between
the department and a corporation or a taxpayer. This letter of
commitment will set out:
(1) the name of the corporation or the individual
taxpayer entity that will file the North Carolina
tax return under Chapter 105;
(2) the name that will be used in the conduct of
business, if different from Paragraph (g)(1) of
this Rule;
(3) the permanent or Home Office address of the
management group directing the operation of
the business;
(4) the location(s) of the qualifying business
operations within the distressed county;
(5) a schedule showing the number of permanent
full time positions to be created and the time
sequence for their being filled;
(6) an estimate of the cost of new capital
expenditures within the distressed county over
the two year time period of the commitment;
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1009
(7) an official contact with the operating firm to
whom inquiries pertinent to the agreement can
be directed;
(8) the date of signing, as defined in Paragraph (b)
of this Rule.
(h) "Determination of Eligibility" is defined as the finding made
by the Department of Economic and Community Development
that the corporation or taxpayer which is creating jobs is eligible
to participate in the Job Tax Credit program. Such finding will
be based on information, submitted on a format prescribed by
the Secretary, which shows:
(1) Corporation or taxpayer name, local (NC)
address, county, telephone number; and
(2) Evidence offered by the corporation or
taxpayer that its firm is eligible to participate
in the Job Tax Credit based on one of the
following criteria:
(A) Firm obtained a Job Tax Credit for
the year 1988.
(B) Firm is listed in the Directory of
Manufacturing Firms in North
Carolina, published by the North
Carolina Department of Economic
and Community Development.
(C) Firm has a primary SIC Code in the
manufacturing group numbered
20-299 as listed in the Standard
Industrial Classification Manual,
1987, published by the Executive
Office of the President, Office of
Management and Budget.
(D) Firm otherwise documents in
narrative form, on form provided by
Department, its position that it is
engaged in the manufacturing of
goods or is engaged in an industrial
activity such as the processing of
foods, raw materials, chemicals or
process agents, goods in process, or
finished goods.
(i) "Severely Distressed County" is defined as a county
designated as such by the Secretary of the Department of
Economic and Community Development. The Secretary will
make such a designation only if a county has a distressed factor
that is one of the 25 highest in the state.
Authority G.S. 105-130.40(a),(c) and (d); 105-151.17(a),(c) and
(d); Chapter 568, 1987 S.L.; Chapter 111 and 753, 1989 S.L.
SECTION .0200 - DESIGNATION OF SEVERELY
DISTRESSED COUNTIES
04 NCAC 01J .0201 DESIGNATION OF SEVERLY
DISTRESSED COUNTIES
(a) On or before December 31 of each calendar year, the
Secretary of the Department shall designate which counties are
considered as severely distressed, and shall provide that
information to the Secretary of Revenue. The Department will
obtain from the North Carolina Employment Security
Commission the adjusted monthly estimates of unemployment
for the most recent 36 month period for which data is available.
Those monthly estimates will be averaged and those averages
used to rank the counties by arranging them in numerical order
of the county with the lowest unemployment as number 1 to the
county with the highest unemployment as number 100.
(b) The Department will obtain from the United States
Department of Commerce the latest available annual per capita
income figures, by county, for the most recent 36 month percent
for which data is available. Those annual figures will be
averaged and those averages used to rank the counties in
numerical order of the county with the highest per capita income
average as number 1 to the county with the lowest per capita
income average as number 100. These two rankings will be
totaled so as to provide a sum which will be the county's distress
factor. Those 25 counties with the highest distress factors will
be designated as severely distressed by the Secretary of
Economic and Community Development. The list of counties so
designated will be provided to the Secretary of the North
Carolina Department of Revenue. In addition, written notice of
that designation will be given to the chairman of elected
governing board in each county so designated.
Authority G.S. 105-130.40(a),(c) and (d); 105-151.17(a),(c) and
(d); Chapter 568, 1987 S.L.; Chapter 111 and 753, 1989 S.L.
SECTION .0300 - LETTER OF COMMITMENT
04 NCAC 01J .0301 LETTER OF COMMITMENT
"Letter of Commitment" will be made in the form prescribed by
the Department of Commerce. They will complete as defined in
Rule .0102 (g) of this Section. When accepted and signed by the
secretary, or his designee, that acceptance will be given in
writing to the person(s) or entity offering the commitment.
These commitments will be received and will be kept on record
at the Commerce Finance Center, Room 2174, Dobbs Building,
430 N. Salisbury Street, Raleigh, North Carolina 27611. A
summary listing of those commitments made available to the
Department of Revenue within 90 days after the close of each
calendar year.
Authority G.S. 105-130.40(c) and (d); 105-151.17(c) and (d);
Chapter 568, 1987 S.L.
SECTION .0400 - SUBSTANTIATION OF CREDIT
CLAIMED
04 NCAC 01J .0401 SUBSTANTIATION OF CREDIT
CLAIMED
Every taxpayer claiming the Jobs Tax Credit shall maintain and
make available for inspection by the Secretary of Revenue such
records as may be necessary to determine and verify the amount
of credit to which the taxpayer is entitled. The burden of
proving eligibility for the credit and the amount of the credit
rests with the taxpayer, and no credit will be allowed to the
taxpayer who fails to maintain adequate records or to make them
available for inspection.
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26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1010
Authority G.S. 105-130.40(f); 105-151.17(f); Chapter 111, 1989
S.L.
SECTION .0500 - DETERMINATION OF ELIGIBILITY
04 NCAC 01J .0501 DETERMINATION OF
ELIGIBILITY
"Determination of Eligibility" will be made in the form
prescribed by the Department of Economic and Community
Development. The Corporation or taxpayer will complete that
form as defined in Rule .0102 (h) of this Subchapter. When
accepted, approved or disapproved, and signed by the Secretary
or his designee, that action will be given to the corporation or
taxpayer requesting the Determination. Such actions will be
kept on record at the Commerce Finance Center, Room 2174,
Dobbs Building, 430 N. Salisbury Street, Raleigh, North
Carolina 27611.
Authority G.S. 105-130.40(b1); 105-151.17(b1); Chapter 753,
1989 S.L.
SUBCHAPTER 01K - ECONOMIC DEVELOPMENT
ACTIVITY OF THE COMMUNITY DEVELOPMENT
BLOCK GRANT PROGRAM
SECTION .0100 - GENERAL PROVISIONS
04 NCAC 01K .0105 PROJECTS NOT TO BE
CONSIDERED FOR FUNDING
(a) Projects that have evidence of prior major financial
commitment by the local government applicant or the proposed
project business. After an operator or beneficiary becomes
economically committed to a project, it shall not be eligible for
funding and the unit of government shall not be eligible to
request any funding assistance to serve that project with utilities
or CDBG loan assistance. "Economic commitment" is not a
quantitative measure, but those types of prohibited situations
shall include the following:
(1) when construction contracts have been signed;
(2) when equipment purchase orders for site
specific installations have been issued;
(3) when true, simple options for the purchase of
an existing facility are bound with deposits
that are so large that the option constitutes a
sales contract; or
(4) when conditions or contingencies in a contract
of sale have all been met; or met.
(5) when public announcements include no
expression of the need for CDBG
participation.
(b) Proposed projects that are specifically prohibited by current
State and HUD rules due to lack of public benefit and potential
failure to meet required program objectives shall not be eligible
for CDBG assistance when the following occurs:
(1) provide general, non-specific promotion of a
community as a whole;
(2) assist professional sports teams;
(3) assist privately-owned recreational facilities
that would serve a predominantly higher-income
clientele, where such recreational
benefit clearly outweighs employment or other
benefits to LMI persons;
(4) acquire land for which no specific purpose has
yet been identified; or
(5) assist a for-profit business while that business
or any other business owned by the same
person, persons or entity is the subject of
unresolved findings of non-compliance
relating to present or previous CDBG
assistance provided by the applicant.
Authority G.S. 143B-431; 24 C.F.R. 570.489; 42 U.S.C.A. 5301.
SECTION .0200 - APPLICATION PROCEDURE
04 NCAC 01K .0202 PRE-APPLICATION
CONFERENCE
(a) Local units of government may advise the Department when
they enter into serious consideration of an economic
development project which may lead to an application. The
Department shall assist the community as requested within the
limits of available resources. Technical advice, liaison and
coordination shall be effected by the Department through the
Commerce Finance Center. Available services include:
(1) forms and documents relating to the
application process with informative
comments,
(2) advice on the type of projects that are
considered eligible for CDBG program
assistance,
(3) examination of, and comment on, assembled
facts and data which might be used in the
preparation of application, and
(4) analysis of approach to likely or potential
procedural or environmental problems.
(b) Prior to submission to the Department of a project
application, the unit of government shall arrange for a pre-application
conference with the Commerce Finance Center.
Parties whose presence are required at the pre-application
conference shall include a member of the elected governing
board for the unit of government, or an authorized designee, a
corporate official, or authorized designee, from the employer or
project company and a representative from a participating bank -
- if the proposed project will involve a loan and a bank has been
selected.
(c) The purpose of the conference is to ensure that the
application procedures are clearly understood so that the
application, shall be complete when submitted and all parties
involved will be made aware of the application process and its
anticipated time frame.
(d) The operator shall offer written project descriptions
whenever possible and may provide data relative to the character
and volume of process wastes, water and air discharges of
pollutants, as well as any comment or permits already received
from the Division of Environmental Management.
(e) The applicant will provide documentation of the first
required public hearing if such a public hearing has been held
within the most recent six months.
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1011
(f) The Department will make no funding decision regarding a
prospective project prior to a full consideration of the completed
application. However, the Commerce Finance Center may issue
a Letter of Encouragement or a Letter of Concerns if so
requested by the unit of government. This letter will convey
comments pertinent to the project and the preparation of the
application and will enumerate any points of concern which are
developed as a result of the information made available at the
conference. These points of concern will be generated so that
the applicant's response may include pertinent facts and data.
The issuance of a letter of encouragement will not preclude the
Secretary or the Commerce Finance Center from raising new
questions or areas of concern after an application is received.
Authority G.S. 143B-431; 24 C.F.R. 570.489; 24 C.F.R.
570.496.
04 NCAC 01K .0204 DISCRETIONARY PUBLIC
HEARING BY THE DEPARTMENT
(a) The Secretary may hold a public hearing on the proposed
project.
(b) If a public hearing is held, the applicant shall give at least 10
days notice prior to the hearing. The notice shall specify the
date, time, place and subject matter of the hearing and be
published in the non-legal section of a newspaper of general
circulation in the applicant's county.
(c) A transcript of the hearing shall be prepared by the Secretary
and, along with any exhibits, made a part of the application.
Authority G.S. 143B-431; 42 U.S.C.A. 5301.
04 NCAC 01K .0207 REIMBURSEMENT OF
DEPARTMENT EXPENSE
Where the Department finds it necessary to incur expense
pertinent to the consideration of an application, the expenditure
shall not be made unless the unit of government or its proposed
beneficiary agrees to reimburse the Department. Such
expenditures shall be limited to out-of-pocket costs of the
Department such as travel and advertising.
Authority G.S. 143B-431; 24 C.F.R. 570-489.
CHAPTER 14 - ECONOMIC DEVELOPMENT
DIVISIONS: DIVISION OF BUSINESS ASSISTANCE
SUBCHAPTER 14B - GOVERNOR'S COMMUNITY OF
EXCELLENCE AWARD PROGRAM
SECTION .0100 - PURPOSE AND PROCEDURE
04 NCAC 14B .0109 PURPOSE
The purpose of the Governor's Community of Excellence Award
Program is to motivate communities to prepare for economic
development, and to develop an inventory of prepared
communities which could be presented to industrial clients. This
is an annual awards program.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0110 INITIAL CONTACT
Any individual, organization or community may initiate contact
with the department, through the Director, Small Community
Economic Development Task Force, Department of Commerce,
430 North Salisbury Street, Raleigh, North Carolina 27611. The
initial contact should be in writing and express the desire to have
the community enter the Governor's Community of Excellence
Award Program.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0111 STAFF PRESENTATION
Within a reasonable time after the initial contact is made, the
appropriate staff members of the division will make a
presentation to the responsible community officials and/or any
other interested residents on the subsequent procedures to
continue in consideration for the award, the requirement of an
inspection, the community journal requirement, and the award
criteria used by the program staff.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0112 ENTRY FORM
(a) Within a reasonable time after the staff presentation and no
later than April 15th, the community must complete the official
entry form. An incomplete entry form will be returned for
completion and will not be considered until it is completed.
(b) The entry form requests the name of the official organization
sponsoring the city, the coordinator, the name of the chairperson
of the following required committees: sponsoring organization
committee, livability committee, industrial site committee,
promotional materials committee, community profile committee,
existing industry committee, community planning committee
and the development team committee. (See 14B .0200 of rules
filed.) The entry deadline is April 15th.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0113 STATUS REPORT
The chairperson of each committee must provide the appropriate
field services representative a summary of information data and
pictorial evidence, where appropriate, on each of the award
criteria. Requirements must be completed by September 15th.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0114 INSPECTION
(a) Within a reasonable time after the form is returned and all
necessary status reports are submitted, the appropriate field
services representative shall decide whether or not a community
inspection should take place. This decision is based on whether
or not the responses in the entry form and status reports indicate
that the specified requirements in seven different categories are
being met.
(b) The Director, Small Community Economic Development
Task Force, North Carolina Department of Commerce, upon
request of the community through the field services
representative, will cause to be assembled an inspection team,
consisting of professional industrial developers and associated
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26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1012
persons. The team will visit the community and will inspect all
aspects of the community's responses to the program
requirements.
(c) For the inspection, the entrant must provide a community
journal to the inspection team. The community journal is to
contain information, data, and pictorial evidence of compliance
with the categorized requirements. The community journal will
be returned to the community.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0115 AGENCY DECISION
(a) If the inspection team verifies upon the basis of its
investigations and other evidence that the community in fact
meets the requirements in all seven categories, a
recommendation is made by the Director, Small Community
Economic Development Task Force, to the Governor that the
award be presented. The Governor, thereafter will forward a
letter of designation to the successful community.
(b) If the inspection team finds on the basis of its investigation
that the community does not meet one or more of the
requirements, then the Director, Small Community Economic
Development Task Force, shall notify the community in writing
of the deficiencies and indicate that the community may apply
for a re-inspection. All inspections are to be completed by
October 15th.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0116 GOVERNOR’S COMMUNITY OF
EXCELLENCE PLAQUE
Successful communities will be presented with a Governor's
Community of Excellence plaque as evidence of their
achievement.
Authority G.S. 143B-432; 143B-10(j).
SECTION .0200 - AWARD CRITERIA
04 NCAC 14B .0211 MAXIMUM SIZE OF
COMMUNITY
This program is limited to communities with population of
15,000 or less (based on latest North Carolina Department of
Administration estimates).
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0212 SPONSORING ORGANIZATION
A community to be eligible for the Governor's Community of
Excellence Award must be represented by a sponsoring
organization (city council, civic club, chamber of commerce,
etc.). This organization must have as one of its purposes the
promotion of economic development in the community. "In
addition a chartered development corporation must exist that is
capable, among other things, of financing of construction of
industrial building that can be leased to industrial clients." An
industrial facilities and pollution control financing authority
must exist.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0213 COMMUNITY PROFILE
A current community profile on the community must be
completed on a form provided by the division. The profile must
bear the signature of a designated official of the municipality or
of the recognized local development organization, attesting to
the authenticity of the data contained therein. Plans to correct
any deficiencies or weaknesses as identified in the profile must
be presented.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0214 INDUSTRIAL SITES
(a) A specified number of industrial sites must be developed and
full information on each submitted on the industrial site forms of
the division of industrial development.
(b) To qualify, each site must have a minimum size of 10 acres.
Industrial site information must include topographical maps,
aerial photographs, and plat maps. There is no maximum size
limitation. Some element of control over these sites must be
shown. This could be ownership by the development
corporation, an option, letter of first refusal, etc. The critical
factor is that the site could be sold to a prospect at a definite
price. Requirements by population are as follows:
(1) population under 3,000 submit at least two
industrial sites; If the community is served by
rail, at least one of these sites must be able to
be served by rail;
(2) population from 3,001 to 7,000 submit at least
three industrial sites; If the community is
served by rail, at least one of these sites must
be able to be served by rail;
(3) population from 7,001 to 15,000 submit at
least five industrial sites; If the community is
served by rail, at least three of these sites must
be able to be served by rail.
(c) To qualify, an industrial site does not have to be newly
developed. Existing qualified sites are acceptable.
(d) To assist the industrial site committee, an information sheet
is provided listing the normal requirements of an industrial site.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0215 PROMOTION MATERIALS
(a) Brochure
(1) An up-to-date brochure or other form of
promotional literature must be prepared for the
community. In addition to the usual local
information normally contained in such
publications, it should contain information on
industrial sites, utilities and a statement on the
interest and ability of the local development
corporation to finance construction of
industrial buildings.
(2) In order to be effective, promotional literature
need not be expensive and elaborate. What is
needed is a concise presentation on the various
aspects of community makeup. The field
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26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1013
services representative of the division of
industrial development is available for
guidance at all times.
(b) A 10-15 minute slide presentation must be prepared on the
community.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0216 EXISTING INDUSTRY
COMMITTEE
Each industry within the town will be visited, preferably by a
two man visitation team. The purpose of this contact is to gain
existing industry's awareness and support of the community's
effort to promote economic development and to offer assistance
to problems encountered by existing industry. The list of
industries will be obtained from the North Carolina Directory of
Manufacturing Firms plus any which have located since the
directory was published. The list should include those firms
normally associated with a town, even if they are not located
inside the city limits. A copy of the suggested call sheet or
record form to be used is provided. A copy for each industry
visit will be included in the materials to be submitted in the
judging process.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0217 COMMUNITY PLANNING
REQUIREMENT
An organized, functioning planning board, appointed by the
governmental unit is a requirement in the Governor's
Community of Excellence Award Program. Field office
personnel of the divisions of community assistance and
industrial development will meet with the chairperson for this
category and determine the actual planning requirement for the
community. This will ensure flexibility for individual
communities rather than set state-wide requirements which
might not be meaningful to certain communities.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0218 LIVABILITY REQUIREMENT:
CLEANUP-FIXUP
(a) An organized cleanup-fixup campaign, involving all sectors
of the populous, must be conducted. A well organized campaign
to improve the visual aspects of the community can have a
dramatic effect in developing a positive attitude toward overall
community improvement. The ability "to see ourselves as others
see us" will spotlight many things that need to be done in a
cleanup-fixup campaign.
(b) The cleanup-fixup must be publicized as a part of the
community's efforts to achieve the Governor's Community of
Excellence Award.
(c) Information to assist in conducting a campaign is available
through the following address:
Keep North Carolina Beautiful Inc.
401 Oberlin Road
Raleigh, North Carolina 27605
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0219 RECREATION
(a) Field office recreational personnel of the divisions of parks
and recreation and industrial development will meet with the
chairperson of the recreation category to determine the
recreation requirement for the community.
(b) Potential tourist attractions for the community must be
identified.
Authority G.S. 143B-432; 143B-10(j).
04 NCAC 14B .0220 DEVELOPMENT TEAM
REQUIREMENT
(a) A development team is comprised of local citizens who are
knowledgeable about such things as transportation, utilities,
government services and taxes, labor resources, and other factors
that are important in a client's selection of a community. It is this
group which meets with industrial clients visiting the
community; or, perhaps, visits potential clients. Teams have
also been used to attract doctors and retail stores.
(b) The Department of Commerce encourages the establishment
of a development team with designated individuals responsible
for specific categories of information. For the purpose of
fulfilling the community of excellence requirement for a
development team, the field services representative may, in
conjunction with the Chairman of the Development Team
Committee, certify that the community's existing effort fulfills
this requirement.
Authority G.S. 143B-432; 143B-10(j).
CHAPTER 19 - DIVISION OF COMMUNITY
ASSISTANCE
SUBCHAPTER 19L - NORTH CAROLINA COMMUNITY
DEVELOPMENT BLOCK GRANT PROGRAM
SECTION .1300 - HOUSING DEVELOPMENT
PROJECTS
04 NCAC 19L .1301 DESCRIPTION
Grants under this category shall support the development of
housing opportunities for low- and moderate-income persons.
The Division may limit the use of program funds to specific
eligible activities.
Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.483.
04 NCAC 19L .1302 ELIGIBILITY REQUIREMENTS
(a) Applications for Housing Development funds must show
that:
(1) At least 51 percent of the CDBG funds
proposed for each project will benefit low- and
moderate-income persons; and
(2) CDBG funds proposed for each activity shall
meet a national objective as specified in HUD
regulations previously incorporated by
reference, except that funds shall not be used
to meet the national objective of urgent need
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1014
which is covered by Rule .0801 of this
Subchapter.
Applicants that do not meet these requirements will not be rated
or funded.
(b) Applicants shall have the capacity to administer a
Community Development Block Grant Program. The Division
may examine the following areas to determine capacity:
(1) audit and monitoring findings on previously
funded Community Development Block Grant
Programs, and the applicant's fiscal
accountability as demonstrated in other state or
federal Programs or local government
financial reports; and
(2) the rate of expenditure of funds in previously
funded Community Development Block Grant
Programs.
Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.482; 24
C.F.R. 570.483.
04 NCAC 19L .1303 SELECTION CRITERIA
(a) The Division may accept applications at any time after the
beginning of the program year.
(b) Housing Development projects shall be rated by the
Division against the following specific criteria:
(1) 85% of the project rating shall be based upon
the project design including the feasibility of
the project, its financial design, the capacity
and experience of the applicant and other
parties involved, the amount of leveraging
other funds, the suitability of the site and
surrounding amenities, and the demand from
the marked; and
(2) 15% of the project rating shall be based upon
the benefit to low and moderate income
persons both immediate and long-term.
Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.489.
CHAPTER 20 - EMPLOYMENT AND TRAINING
SUBCHAPTER 20B - ADMINISTRATIVE PROVISIONS
SECTION .0400 - PERSONNEL STANDARDS FOR
SUBRECIPIENTS
04 NCAC 20B .0402 FEDERAL PERSONNEL
STANDARDS
(a) Under the subgrant agreement and the contract document,
subrecipients are required to comply with "Standards for a Merit
System of Personnel Administration" established by the Office
of Personnel Management of the federal government. A copy of
these standards is available from the Division or from the Office
of State Personnel located at 116 West Jones Street, Raleigh,
North Carolina, 27611.
(b) All subrecipients are responsible for determining the
applicability of the provisions of the federal Fair Labor
Standards Act to its employees and participants. Technical
assistance in the interpretation and application of the act is
available from the Wage and Hour Division of USDOL located
in the Federal Building, Raleigh, North Carolina, 27611. The
Division may require written verification if it is determined that
participants are not covered by the act.
Authority G.S. 143-16; 143-16.1; 143-341; 143B-430(b); 5
C.F.R. 900, Subpart F; 20 C.F.R. 629.1.
04 NCAC 20B .0403 STATE PERSONNEL
STANDARDS FOR SUBRECIPIENTS
(a) State standards, published by the State Personnel
Commission, which are compatible with the federal personnel
standards, may be applicable to some subrecipients. The
standards may be found in the Manual of Personnel Policies for
Local Government Employees Subject to the State Personnel
Act (Local Personnel Manual), which is available from the
Office of State Personnel, 116 West Jones Street, Raleigh, North
Carolina, 27611.
(b) Local educational agencies that receive JTPA funds
administered by the State Board of Education must comply with
the applicable provisions of Subchapter V, Personnel, of Chapter
115C of the General Statutes and the rules and regulations of the
State Board of Education.
Authority G.S. 115C, Subchapter V; 126-1; 143-16; 143-16.1;
143-341; 143B-430(b).
SECTION .0900 - EMPLOYMENT AND TRAINING
GRANT PROGRAM
04 NCAC 20B .0901 PURPOSE
The purpose of this state funded program is to make grants
available to local agencies operating on behalf of the Private
Industry Council serving Job Training Partnership Act service
delivery areas. Funds shall be used to upgrade the foundation of
basic skills of the adult population and the existing workforce in
North Carolina.
Authority G.S. 143B-438.6.
04 NCAC 20B .0902 GRANT APPLICATIONS
Service delivery areas will submit plans for the use of these
funds as part of the Job Training Plan, in accordance with Rule
.0201 of this Subchapter.
Authority G.S. 143B-438.6.
04 NCAC 20B .0904 COORDINATION WITH OTHER
EMPLOYMENT AND TRAINING FUNDS
These funds will become part of the strategic process
implemented through the Governor's Coordination Criteria and
the strategic planning process used for development of Job
Training Plans by the Private Industry Councils. These PICs
combine the private sector and public sector in an employment
and training service delivery system that is based on local
control, local problem solving, coordination of services and
accountability.
Authority G.S. 143B-438.6.
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26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
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04 NCAC 20B .0906 USE OF FUNDS
Services that may be provided include participant programs
currently available under the federal Job Training Partnership
Act that are appropriate for adults. Services include but will not
be limited to on-the-job training, work experience, adult basic
education, skill training, upgrading and retraining, counseling
and screening for job placement, service corps, and supportive
services necessary to enable individuals to participate in the
program and to assist them in retaining employment for a period
of one service year following completion of training. PICs have
flexibility to use funds to fill gaps in current
training/self-sufficiency services.
Authority G.S. 143B-438.6.
04 NCAC 20B .0907 COST
LIMITATIONS/CATEGORIES
(a) Administrative costs will be limited to five percent of
allocation. Administrative costs represent indirect and other
costs associated with general management and support functions
of an agency or organization as well as secondary management
and support functions not directly related to program operations.
(b) All non-administrative costs shall be classified as program
costs.
Authority G.S. 143B-438.6.
04 NCAC 20B .0909 PERFORMANCE STANDARDS
Program performance will be evaluated by the Division using a
process patterned after the system of performance standards and
measures required by the JTPA. Local performance measures
will be entered employment rate at termination; average wage at
placement; welfare entered employment rate at termination.
Authority G.S. 143B-438.6.
04 NCAC 20B .0910 MONITORING/OVERSIGHT
The Division will monitor for fiscal and programmatic
compliance, for proper management, for civil rights compliance
and for such other purposes as are reasonable for administration
of these funds as specified in Rule .0502(a) and (b) of this
Subchapter. Oversight includes both on-site visits and in-house
reviews of participant and financial reports.
Authority G.S. 143B-438.6.
04 NCAC 20B .0911 FUND
AVAILABILITY/REDISTRIBUTION
Funds appropriated that are not expended at the end of the
program year will not revert but will remain available to the
Department for continued program purposes.
(1) Voluntary Transfer. A voluntary transfer
process will be available to redistribute funds.
If a service delivery area volunteers to transfer
funds to another service delivery area, these
funds can be removed from the SDA's Notice
of Fund Availability and redistributed by the
State to another SDA. An SDA opting to
transfer funds to another SDA that wishes to
accept those funds may transfer any portion of
its monies, including those exclusively from
one cost category.
(2) Voluntary transfers may be negotiated any
time with the approval of the PICs and Chief
Local Elected Officials from the SDAs
involved, contingent on subsequent Division
approval. An SDA may only transfer funds if
there is another SDA(s) willing to accept the
funds. The Division will act as a
clearinghouse for requests to transfer funds.
Requests to transfer funds must be signed by
the PIC Chairman and Chief Local Elected
Official(s). The Division will consider
requests made by PICs and CEOs to release
funds to a specific SDA.
(3) If funds are released by an SDA to a specific
SDA, the releasing SDA must obtain a letter
from the designated recipient that states that
the SDA accepts the conditions that the
releasing SDA specifies. Such conditions
shall include timing of release and cost
categories. The Division retains the right to
approve or disapprove all negotiated fund
transfers. SDAs are required to adjust their
local Job Training Plans.
(4) Funds must be released by May 1 in order to
be effective for that program year.
Authority G.S. 143B-438.6.
TITLE 12 – DEPARTMENT OF JUSTICE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Private Protective Services Board intends to amend the
rule cited as 12 NCAC 07D .0107.
Link to agency website pursuant to G.S. 150B.19.1(c):
www.ncdoj.gov
Proposed Effective Date: May 1, 2012
Public Hearing:
Date: February 2, 2012
Time: 2:00 p.m.
Location: 4901 Glenwood Avenue, Suite 200, Raleigh, NC
27612
Reason for Proposed Action: These proposed changes are to
set a statute of limitations for Board complaints as licensees
need only maintain records for three years.
Procedure by which a person can object to the agency on a
proposed rule: Objections to the proposed rule changes shall
be submitted before the end of the comment period in writing to
Anthony Bonapart, Deputy Director, Private Protective Services
Board, 4901 Glenwood Avenue, Suite 200, Raleigh, NC 27612.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1016
Comments may be submitted to: Anthony Bonapart, PPSB
Deputy Director, 4901 Glenwood Avenue, Suite 200, Raleigh,
NC 27612
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 07 - PRIVATE PROTECTIVE SERVICES
SUBCHAPTER 07D - PRIVATE PROTECTIVE
SERVICES BOARD
SECTION .0100 - ORGANIZATION AND GENERAL
PROVISIONS
12 NCAC 07D .0107 DISCIPLINARY ACTIONS
(a) The Board may deny, suspend, or revoke deny a license,
trainee permit, registration or firearms trainer certificate for any
violation of G.S. Chapter 74C or 12 NCAC 07D. The Board
may suspend or revoke a license, trainee permit, registration or
firearms trainer certificate for any violation of G.S. Chapter 74C
or 12 NCAC 07D , provided that the violation occurred within
three years of the initiation of the Board investigation of such
violation.
(b) The Board may issue a written reprimand to a holder of a
license, trainee permit, registration identification card or
firearms trainee certificate when the Board determines:
(1) the holder has violated any of the provision of
12 NCAC 07D or G.S. Chapter 74C that were
applicable to the holder;
(2) the violation did not result in the physical
injury of or property loss to any person; and
(3) the holder expresses an intention to or already
has corrected the improper activity. activity;
and
(4) the violation occurred within three years of the
initiation of the Board investigation of such
violation.
(c) A notice of any disciplinary action shall be sent to the
employer of the holder if the holder is employed by a licensee.
(d) Evidence of disciplinary action may be presented and
considered at any subsequent disciplinary proceeding of the
holder.
Authority G.S. 74C-5; 74C-8.
TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND
COMMISSIONS
CHAPTER 22 - HEARING AID DEALERS AND FITTERS
BOARD
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Hearing Aid Dealers and Fitters Board intends to amend the
rules cited as 21 NCAC 22F .0101, .0103, .0107, .0114.
Link to agency website pursuant to G.S. 150B-19.1(c):
www.nchalb.org/Rules/Proposed.21NCAC22F.pdf
Proposed Effective Date: May 1, 2012
Public Hearing:
Date: February 1, 2012
Time: 9:45 a.m.
Location: Commission Room, Office of Administrative
Hearings, 1711 New Hope Church Road, Raleigh, NC 27609
Reason for Proposed Action: The Board voted to remove the
Exam Prep Workshop requirement as a pre-requisite to taking
the exam. It shall be the duty of the sponsor to provide exam
preparation to apprentice. Extending the dates for registration,
notification of exam results, and dates upon which an exam can
be given will give the Board more flexibility in contracting with
an Exam Administrator for the lowest cost.
Procedure by which a person can object to the agency on a
proposed rule: A person can object to the agency by speaking
at the public hearing on February 1, 2012 or by submitting
written comments to the following address no later than March
19, 2012: NC State Hearing Aid Dealers and Fitters Board,
Attn: Rulemaking 22F, P.O. Box 97833, Raleigh, NC 27624.
Comments may be submitted to: Catherine Jorgensen,
Rulemaking Coordinator, NC State Hearing Aid Dealers and
Fitters Board, P.O. Box 97833, Raleigh, NC 27624
Comment period ends: March 19, 2012
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1017
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
SUBCHAPTER 22F - GENERAL EXAMINATION AND
LICENSE PROVISIONS
21 NCAC 22F .0101 TIME OF EXAMINATIONS
The Board shall hold the qualifying examination
examinations as set forth in G.S. 93D-8 onby publicizing
each exam at least 90 days in advance, with one exam being
offered on a day during the first Saturday week in May of
each year year, and may hold an, and additional examinations
offered during the year examination on the first Saturday in
November of each year if a sufficient number of timely-filed
applications are received to justify, in at the Board's
discretion. discretion, holding such additional examination.
Authority G.S. 93D-3(c); 93D-8.
21 NCAC 22F .0103 SUBMISSION OF
APPLICATIONS AND FEES
(a) A duly made application for issuance or renewal of an
apprentice registration certificate shall be submitted to the
Board no later than ten working days after the date that any of
the following conditions exist:
(1) Whenever a registered apprentice is separated
from his sponsor for any reason and such
individual wishes to obtain a new certificate to
replace the invalidated certificate;
(2) Whenever a registered apprentice is notified
by the Board that he failed to pass the
qualifying examination and such individual
wishes to renew his certificate;
(3) Whenever the Board notifies the individual
that his apprentice registration certificate has
been invalidated for any reason and such
individual wishes to obtain a new certificate to
replace the invalidated certificate; and
(4) Whenever an Audiologist duly makes
application for issuance of a license by
examination and that individual elects to
become a registered apprentice in order to
engage in the fitting and selling of hearing
aids, under the supervision of a licensee
approved by the Board, while waiting to take
the next scheduled qualifying examination.
(b) A registered apprentice who holds a masters degree in
Audiology and is not an Audiologist, as defined in 21 NCAC
22A .0301(2), must complete 250 clock hours of supervision by
a licensee approved by the Board. However, no later than ten
working days after any registered apprentice who is not an
Audiologist has held a valid apprentice registration certificate
for 365 calendar days, the apprentice shall submit a duly made
application for issuance of a license by examination and shall
take the next scheduled qualifying examination. All registered
apprentices shall reapply for a license by examination, within the
time prescribed in Paragraph (c) of this Rule, each time they take
and fail to pass the qualifying examination.
(c) Whenever a registered applicant is required to take the
qualifying examination as a condition for issuance of a license or
reissuance of a suspended license, the duly made application
shall be considered by the Board to be timely if it is received by
the Board no later than 3045 consecutive days prior to the
examination date. The Board shall have the right to refuse any
person admission to the qualifying examination if such
individual has not submitted the duly made application
application, as defined in 21 NCAC 22A .0309.for issuance or
reissuance of a license, has not attended an examination
preparation workshop as set forth in 21 NCAC 22F .0014(b), or
has not made a timely filing.
(d) All fees shall be made payable to the N.C. Hearing Aid
Dealers and Fitters Board. When a company or personal check
is received in payment of any fee, the Board shall wait until final
credit on the check is received before providing the license or
other document requested. A processing fee of twenty dollars
($20.00) (or any greater amount allowed by law) shall be
charged for any check on which payment is refused by the payor
bank because of insufficient funds or because the drawer did not
have an account at that bank at the time the check was presented
to the Board.
Authority G.S. 25-3-506; 93D-3(c); 93D-5; 93D-9.
21 NCAC 22F .0107 COMMUNICATION OF
RESULTS OF EXAMINATIONS
The office of the Board shall issue written notification to each
registered applicant, by mailing exam results to the physical
address provided by the applicant, concerning only his own
the applicant's performance on the qualifying examination, no
later than 10 30 working days after the date of the
examination.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1018
Authority G.S. 93B-8; 93D-3(c).
21 NCAC 22F .0114 TRAINING AND SUPERVISION
(a) Each registered apprentice, excluding those Audiologists
who elect to be a registered apprentice while waiting to take
the qualifying examination for the first time, shall submit to
direct supervision by a licensee who is approved by the Board
and who shall be responsible for the apprentice's training and
supervision in the following areas:
(1) Anatomy, physiology, and pathology of the
auditory mechanism;
(2) Measurement techniques and test
interpretation for assessment of hearing
impairment and hearing handicap;
(3) Hearing aid technology including instrument
circuitry and acoustic performance data;
(4) Design, selection, and modification of
earmold/shell coupling systems;
(5) Hearing aid selection procedures, and fitting
and adjustment techniques;
(6) Post-delivery care including hearing aid
orientation and counseling techniques, and
hearing aid servicing;
(7) Ethical conduct and regulatory issues
concerning the fitting and selling of hearing
aids; and
(8) Other related topics that the sponsor or
apprentice deem necessary.
(b) Before taking the qualifying examination for the first time,
each registered apprentice who is not an Audiologist shall attend
an examination preparation workshop, approved or sponsored by
the Board, which consists of one 3-day session. The workshop
dates shall be scheduled in conjunction with the dates for the
qualifying examinations. Information concerning the scheduled
times, dates, and topics for each workshop may be obtained from
the office of the Board. Written notice of intent to attend any or
all of the daily sessions shall be received by the Board at least 10
working days prior to the starting date of each workshop.
(c) The Board shall have the right to refuse any person
admission to the workshop sessions if the individual is not a
registered apprentice or a registered applicant, or if timely
notification of intent to attend was not made in accordance with
Paragraph (b) of this Rule.
Authority G.S. 93D-3(c); 93D-5; 93D-9.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 63 – SOCIAL WORK CERTIFICATION
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Social Work Certification and Licensure Board intends to
amend the rules cited as 21 NCAC 63 .0208, .0210, .0403-.0404.
Link to agency website pursuant to G.S. 150B-19.1(c):
www.ncswboard.org
Proposed Effective Date: July 1, 2012
Public Hearing:
Date: March 8, 2012
Time: 9:30 a.m.
Location: 1207 S. Cox Street, Suite F, Asheboro, NC 27203
Reason for Proposed Action: Pursuant to authority under G.S.
90B-6.2, the Board proposes to increase fees for select services.
The Board operates from the fees collected for services and has
not increased fees since October 1999. The proposed increases
follow a yearlong analysis of the Board's expenses, revenues,
and staffing needs as they relate to ensuring quality operations
and fiscal solvency for the coming years.
21 NCAC 63 .0208 – proposes to increase the application fee
from $100 to $115. In addition the language of the rule is
improved to accurately reflect applicant's responsibility for
payment.
21 NCAC 63 .0210 – requires amendment to remove redundant
and ambiguous language.
21 NCAC 63 .0403 – proposes to increase the biennial renewal
fees. Two sections are included to provide clear fee information
for individuals whose credential expires 06/30/11 but who renew
within the sixty-days allowed for late renewal pursuant to G.S.
90B-9(c). The increases are based on the degree and
employment potential for the different credential levels: CSW
from $60 to $70, CMSW from $75 to $90, P-LCSW from $125 to
$140, and both CSWM and LCSW from $125 to $150.
21 NCAC 63 .0404 – proposes to increase the reinstatement fee
from $100 to $125 for certificates or licenses retired or
suspended for failure to renew; and redundant language already
addressed by (G.S. 90B-4) is removed to improve the rule.
Procedure by which a person can object to the agency on a
proposed rule: State the objection and reasons for the
objection. Specify the text of the rule to which the objection
pertains. Submit the text of the rule, stated objection, and
reason for the objection in writing to the Rule Making
Coordinator, Micki Lilly, Executive Director, NCSWCLB, P.O.
Box 1043, Asheboro, NC 27204.
Comments may be submitted to: Micki Lilly, Executive
Director, NCSWCLB, P.O. Box 1043, Asheboro, NC 27204, fax
(336)625-4246, email mswboard@asheboro.com
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1019
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
SECTION .0200 - CERTIFICATION
21 NCAC 63 .0208 APPLICATION FEE
An initial application fee of one hundred dollars ($100) will be
assessed for processing each application. Each applicant for
certification or licensure by the Board shall submit an initial
application fee of one hundred and fifteen dollars ($115.00) with
the application.
Authority G.S. 90B-6; 90B-6.2.
21 NCAC 63 .0210 PROVISIONAL LICENSES
(a) The Board shall issue a provisional license to any person
who meets the requirements in G.S. 90B-7(f).
(b) Applications and forms shall be obtained from and returned
to the Board Office.
(c) The Board shall assess an application fee of one hundred
dollars ($100.00) for processing each application.
(d)(c) Prior to practicing clinical social work, applicants must
demonstrate in writing that, in the event of a clinical emergency
they have immediate access to a licensed mental health
professional who has agreed to provide to them emergency
clinical consultation to assure that standards of clinical social
work practice are maintained. Provisionally- licensed clinical
social workers shall immediately notify the Board in writing of
any change in such access.
(e)(d) Each provisional licensee must be supervised as set forth
in G.S. 90B-7(f), and, shall receive on-going appropriate
supervision, as defined in Rule .0211(a)(2) of this Chapter, until
the provisional licensee is licensed as a Licensed Clinical Social
Worker.
(f)(e) All provisional licensees shall submit reports of their
clinical social work experience and supervision on the
appropriate Board form(s) every six months for review and
evaluation by the Board.
(g)(f) To prevent a lapse in licensure, provisional licensees who
desire to become Licensed Clinical Social Workers shall
complete the application process for the Licensed Clinical Social
Worker classification and submit the application fee of one
hundred dollars ($100.00) early enough to allow 30 days for
administrative processing and Board action prior to the
expiration of the provisional license.
Authority G.S. 90B-6; 90B-7.
SECTION .0400 – RENEWAL OF CERTIFICATION
21 NCAC 63 .0403 RENEWAL FEES
(a) Fees for renewal of certificates or licenses: licenses which
are due for renewal on or before June 30, 2012 shall be as
follows:
(1) For Certified Social Workers (CSW's) the
renewal fee shall be sixty dollars ($60.00).
(2) For Certified Master Social Workers
(CMSW's) the renewal fee shall be seventy-five
dollars ($75.00)
(3) For Licensed Clinical Social Workers
(LCSW's) the renewal fee shall be one
hundred twenty-five dollars ($125.00).
(4) For Certified Social Work Managers
(CSWM's) the renewal fee shall be one
hundred twenty-five dollars ($125.00).
(b) Fees for renewal of certificates or licenses which are due for
renewal after June 30, 2012 shall be as follows:
(1) For Certified Social Workers (CSW's) the
renewal fee shall be seventy dollars ($70.00).
(2) For Certified Master Social Workers
(CMSW's) the renewal fee shall be ninety
dollars ($90.00).
(3) For Licensed Clinical Social Workers
(LCSW's) the renewal fee shall be one
hundred and fifty dollars ($150.00).
(4) For the provisionally Licensed Clinical Social
Workers (P-LCSW’s) the renewal fee shall be
one hundred and forty dollars ($140.00).
(5) For Certified Social Work Managers
(CSWM's) the renewal fee shall be one
hundred and fifty dollars ($150.00).
(b)(c) Persons whose applications for renewal are received by
the Board after the renewal date of their certificate or license, but
no later than 60 days after the renewal date, shall be assessed a
late renewal fee of fifty dollars ($50.00) in addition to any other
applicable fees.
Authority G.S. 90B-6; 90B-6.2; 90B-9(b).
21 NCAC 63 .0404 REINSTATEMENT
(a) Persons whose certificate or license is suspended for failure
to renew, pursuant to G.S. 90B-9(c), are prohibited from
engaging in the practice of clinical social work and from holding
themselves out as certified or licensed by the Board until they
apply for and receive reinstatement of their certificate or license
by the Board.
(b) Persons who apply for reinstatement Each applicant for
reinstatement of a certificate or license issued by the Board after
temporary retirement from the practice of social work pursuant
to G.S. 90B-9(d), or after their certificate or license was
suspended for failure to renew, shall be assessed a reinstatement
fee of one hundred dollars ($100.00) in addition to any other
applicable fees. submit to the Board a reinstatement fee of one
hundred and twenty-five dollars ($125.00) in addition to any
other applicable fees with the application.
Authority G.S. 90B-6; 90B-6.2; 90B-9.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
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TITLE 25 – OFFICE OF STATE PERSONNEL
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Personnel Commission intends to amend the rules cited
as 25 NCAC 01B .0436-.0438.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.osp.state.us/rtable.comm/spc.htm
Proposed Effective Date: June 1, 2012
Public Hearing:
Date: March 19, 2012
Time: 10:00 a.m.
Location: Third Floor Conference Room, Administration
Building, 116 West Jones Street, Raleigh, NC 27603
Reason for Proposed Action:
25 NCAC 01B .0436 – This Rule is being updated to reflect the
processes that have changed in State government as a result of
the implementation of electronic processing of personnel
actions. Systems such as BEACON and other centralized human
resources/payroll information management systems have largely
replaced the processing of paper forms.
25 NCAC 01B .0437 – This Rule is being proposed due to the
recent statutory changes resulting from Senate Bill 781, whereas
the State Personnel Commission no longer makes the final
decision in contested cases brought under Chapter 126. This
Rule will remain effective for petitions filed in the Office of
Administrative Hearings prior to January 1, 2012.
25 NCAC 01B .0438 – This Rule is proposed to be amended as a
result of recent statutory changes resulting from Senate Bill 781,
the Regulatory Reform Act. The State Personnel Commission
will no longer be making findings or issuing orders under that
portion of General Statutes 126-4(11) which makes Commission
review a prerequisite to one situation in which the Commission
may award attorney's fees.
Procedure by which a person can object to the agency on a
proposed rule: A public hearing will be held on March 19,
2012 at 10:00 a.m. The hearing will be held in the third floor
conference room, Administration Building, 116 West Jones
Street, Raleigh, NC. The purpose of the hearing is to receive
oral and written comments/objections regarding the proposed
action of the following rules: 25 NCAC 01B .0436, .0437 and
.0438. Written comments/objections not submitted during the
public hearing should be sent to: Mr. Ken Litowsky, Human
Resources Partner, Office of State Personnel, 1331 Mail Service
Center, Raleigh, NC 27699-1331. The public comment period
will end on March 19, 2012.
Comments may be submitted to: Mr. Ken Litowsky, Office of
State Personnel, 1331 Mail Service Center, Raleigh, NC 27699-
1331; phone (919) 807-4800; fax (919) 733-0653; email
ken.litowskyi@osp.nc.gov
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - OFFICE OF STATE PERSONNEL
SUBCHAPTER 01B - STATE PERSONNEL
COMMISSION
SECTION .0400 - APPEAL TO COMMISSION
25 NCAC 01B .0436 SETTLEMENTS/CONSENT
AGREEMENTS IN GRIEVANCES, CONTESTED CASES
(a) Any settlement or consent agreement in a grievance or
contested case which requires the processing of personnel action
forms by the Office of State Personnel input of data into
BEACON must be approved by the Office of State Personnel
before such personnel action forms will be processed. Approval
by the Office of State Personnel shall be indicated by the
signature of the State Personnel Director or his designee in an
appropriate place on the settlement or consent agreement. This
provision shall not be construed to require Office of State
Personnel approval of a settlement in which the only portion
requiring approval is the awarding of attorney's fees to the
employee's attorney by the State Personnel Commission. This
provision shall also not be construed to require approval of any
settlement the terms of which allow an employee to substitute a
resignation for a dismissal and to withdraw a grievance or a
contested case action.
(b) The provisions of 25 NCAC 01A .0104 (EXCEPTIONS
AND VARIANCES) must be complied with when any provision
of a settlement or consent agreement in a grievance or contested
case requires an exception to or variance from existing personnel
policy. This compliance shall be in addition to the requirements
of this Rule. Any settlement or consent agreement which
contains a provision which requires an exception to or variance
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1021
from existing personnel policy must be reviewed and approved
by the State Personnel Commission prior to the processing of
any personnel action forms by the Office of State Personnel.
(c) Personnel action forms, Requests to input data into the
State's human resources and payroll system which are required
by the provisions of any settlement or consent agreement which
has not been approved by the Office of State Personnel or the
State Personnel Commission as required by this Rule, shall not
be processed by the Office of State Personnel BEACON and
shall be returned to the agency without action.
(d) Any settlement or consent agreement which does not require
action by the Office of State Personnel or the State Personnel
Commission BEACON or which falls within the exception set
forth in Paragraph (a) of this Rule does not require the approval
of either body to be effective.
Authority G.S. 126-4.
25 NCAC 01B .0437 STATE PERSONNEL
COMMISSION: PROCEDURES
(a) The rule applies to contested cases commenced prior to
January 1, 2012.
(b)(a) The State Personnel Commission Administrator, on
behalf of the State Personnel Commission, shall receive the
record in the contested cases forwarded by the Office of
Administrative Hearings and the State Personnel Commission
shall make a final administrative decision in the case. Any
record received by the Administrator on the day of a
Commission meeting shall be deemed to have been received
after the Commission meeting and the time in which the
Commission has to review and decide the case shall run from the
Commission meeting. The Office of State Personnel shall be
responsible for the administrative management of contested
cases coming before the Commission for its review and decision.
(c)(b) Oral Argument. Either party to a contested case may
request the opportunity to appear before the State Personnel
Commission and make oral argument in all cases. Such
arguments shall be based solely on the information contained in
the record submitted by the OAH. Oral arguments shall be
requested or waived in writing no more than 10 calendar days
after the filing date of the decision of the Administrative Law
Judge and the parties shall attach a copy of the Administrative
Law Judge's decision to the request or waiver. After the
Commission has received either a request or waiver of oral
argument from the parties, the Commission shall send a notice of
review which shall contain the date, time and place of the
Commission meeting at which the case may be reviewed. If a
party has failed to request or waive oral argument in a timely
fashion, that party may not be allowed to present oral argument
or file legal briefs or memoranda to the Commission. Each party
requesting oral argument shall be allotted a maximum of 10
minutes for the presentation, unless the time period is extended
by a vote of the Commission. Time may be extended by the
Commission for good cause shown as defined in 25 NCAC 01B
.0439. All requests to speak for more than 10 minutes shall be
made in writing in the same document which requests the
opportunity to make oral argument. The party which did not
prevail before the Administrative Law Judge is entitled to make
the first oral argument and to present a rebuttal. If both parties
are seeking changes in the Administrative Law Judge's decision,
both parties may present a rebuttal and the party with the burden
of proof in the contested case is entitled to the last rebuttal.
(d)(c) Briefs, Legal Memoranda, Attorney's Fees Requests. All
briefs and legal memoranda in cases other than those arising
under G.S. 14.4 shall be received by the Office of State
Personnel no later than 30 calendar days after the filing date of
the decision of the Administrative Law Judge. Such document
shall also be served upon the opposing party and a copy of the
decision of the Administrative Law Judge shall be attached to
the document. Such a document received after the deadline shall
be presented to the Commission only after the party has shown
that the opposing party was served with the document no later
than 30 calendar days after the filing date of the decision of the
Administrative Law Judge. Attorney's fees requests must be
presented to the Commission by the prevailing party to a
Commission Decision and Order at least one month before the
meeting at which the matter is to be considered. Such requests
must also be served upon the opposing party. The Commission
shall notify the parties upon receipt of a request for attorneys
fees and provide an opportunity for the opposing party to file
objections to the fees requested. If the parties wish to make oral
argument on an attorney's fees request, a request for oral
argument must be received by the Office of State Personnel
within two weeks after the filing of the attorney's fees request
and at least one month prior to the meeting at which such oral
argument is requested. Parties shall submit 25 copies of each
pleading (with three holes in the left margin) filed with the
Commission. An extension of time to file documents with the
Commission may be granted by the Administrator for good
cause shown as defined in 25 NCAC 01B .0439.
(e)(d) Written Exceptions. Proposed Alternative Findings,
Conclusions and Recommendations. Each party shall submit
written exceptions to the decision of the Administrative Law
Judge, unless the party accepts the decision in its entirety. Any
party may choose to submit proposed alternative findings of fact
and conclusion of law. Exceptions and alternative findings of
fact and conclusions shall be received by the Office of State
Personnel no later than 30 calendar days after the filing date of
the decision of the Administrative Law Judge. Written
exceptions shall be specifically drawn. Each exception and
proposed alternative finding or conclusion shall specifically,
separately, and in detail, set forth how the finding or conclusion
is clearly contrary to the preponderance of the admissible
evidence, the specific reason(s) the Commission should not
adopt the Administrative Law Judge's finding of fact or
conclusion of law and the specific evidence in the record which
supports the rejection of the Administrative Law Judge's finding
of fact or conclusion of law, including but not limited to
references to the testimony of witnesses, any evidentiary
exhibits, and any exercise of discretion by the agency to which
deference should be accorded. Any new findings of fact
proposed to the Commission must be supported by a
preponderance of the evidence which shall be set forth in
support of the new finding of fact. Any new decision proposed
to the Commission must be supported by a preponderance of the
admissible evidence in the record and the reason that the
Administrative Law Judge's decision is clearly contrary to the
preponderance of the admissible evidence in the record must be
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1022
set forth in detail. If the Administrative Law Judge has
recommended granting summary judgment or judgment on the
pleadings and a party proposes that the Commission reject the
Administrative Law Judge's decision, the party shall set forth the
basis for rejecting the Administrative Law Judge's decision in
detail. Reference must be made to the transcript (and volumes,
where applicable), if the transcript of the hearing was made and
is available. Where a party excepts to a finding, conclusion, or
recommendation and requests its deletion or amendment, an
alternative finding, conclusion, or recommendation shall be
made. Such a document received after the deadline shall be
presented to the Commission only after the party has shown that
the opposing party was served with the document no later than
30 calendar days after the filing date of the Administrative Law
Judge's decision. The Commission may adopt the findings of
fact and conclusions of law of the Administrative Law Judge, or
amend the same, or adopt alternative findings of fact and
conclusion of law, either from those submitted by the parties or
drawn from its own review of the whole record. Parties shall
submit 25 copies of each pleading (with three holes in the left
margin) filed with the Commission. An extension of time to file
documents with the Commission may be granted by the
Administrator for good cause shown as defined in 25 NCAC
01B .0439.
(f)(e) Proposed Decision and Order. Each party to a contested
case shall submit a proposed Decision and Order for
consideration by the Commission in that case. The proposed
Decision and Order shall be received by the Office of State
Personnel no later than 30 calendar days after the filing date of
the decision of the Administrative Law Judge. The Commission
may delay decision in a case until all parties have submitted a
proposed Decision and Order. The Proposed Decision and
Order shall indicate which findings, conclusions, and
recommendations of the Administrative Law Judge are being
deleted or amended and why, and specifically, separately, and in
detail, set forth how the finding or conclusion is clearly contrary
to the preponderance of the admissible evidence. The Proposed
Decision and Order must include the specific reason(s) the
Commission should not adopt the Administrative Law Judge's
finding of fact or conclusion of law and the specific evidence in
the record which supports the rejection of the Administrative
Law Judge's finding of fact or conclusion of law, including but
not limited to references to the testimony of witnesses, any
evidentiary exhibits, and any exercise of discretion by the
agency to which deference should be accorded. Any new
findings of fact proposed to the Commission must be supported
by a preponderance of the evidence which shall be set forth in
support of the new finding of fact in the Proposed Decision and
Order. Any new conclusions of law or decision proposed to the
Commission must be supported by a preponderance of the
admissible evidence in the record and the reason that the
Administrative Law Judge's decision is clearly contrary to the
preponderance of the admissible evidence in the record must be
set forth in detail in the Proposed Decision and Order. If the
Administrative Law Judge has recommended granting summary
judgment or judgment on the pleadings and a party proposes that
the Commission reject the Administrative Law Judge's decision,
the party shall set forth the basis for rejecting the Administrative
Law Judge's decision in detail in the Proposed Decision and
Order. The proposed Decision and Order shall contain an order
in the case for the signature of the Administrator to the
Commission, consistent with and supported by the findings and
conclusions. Parties shall submit 25 copies of each pleading
(with three holes in the left margin) filed with the Commission.
An extension of time to file documents with the Commission
may be granted by the Administrator for good cause shown as
defined in 25 NCAC 01B .0439.
(g)(f) Service on Opposing Parties. Copies of all documents
permitted or required by this Rule shall be served on the
opposing party, but no later than 30 calendar days after the filing
date of the decision of the Administrative Law Judge. If a
document is filed electronically with the Commission as
permitted in 25 NCAC 01B .0437(h), the document must also be
served electronically on the opposing party if the opposing party
has an electronic address. Electronic service must be followed
by service of printed copies of any document filed electronically
within 24 hours of electronic filing.
(h)(g) Notification. The parties or when applicable, the legal
representative of record for a party, shall be notified by certified
mail, return receipt requested, of the Commission's decision.
The Commission's decision shall be prepared and sent out by the
Office of State Personnel. Copies or the content of a specific
decision and order shall not be released to non-parties until the
Office of State Personnel has knowledge that all parties have
received a copy of the Decision and Order.
(i)(h) Electronic Filing. Any documents which are required or
permitted to be filed under 25 NCAC 01B .0437, may be filed
electronically by midnight of the filing date with the State
Personnel Commission Administrator in a format readable by
the Administrator. Printed copies of any documents filed
electronically must also be filed with the Administrator in
accordance with 25 NCAC 01B .0437(c), (d) and (e) within 24
hours of the electronic filing.
Authority G.S. 126-4.
25 NCAC 01B .0438 ESTABLISHMENT OF
REASONABLE ATTORNEY FEES BY THE
COMMISSION
(a) This Paragraph applies to contested cases commenced prior
to January 1, 2012.
(1) The Commission shall award the
reimbursement of legal fees and costs as
follows:
(A)(1) Attorney fees incurred in connection
with the contested case proceeding
before the Commission and with any
successful appeal of a Commission
decision in the General Courts of
Justice at a reasonable hourly rate
based on the prevailing market rate
but at a rate no higher than the fee
agreement between the parties;
(B)(2) Law Clerk, Paralegal, or Legal
Assistant fees at a reasonable hourly
rate based on the prevailing market
rate but at a rate no higher than the
fee agreement between the parties;
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26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1023
(C)(3) Travel time at a maximum rate of
one-half the applicable hourly
attorney or legal support staff fee
rate;
(D)(4) Costs at the actual cost.
(2) Fees shall not be awarded unless requested by
an attorney or the Petitioner and documented
by an itemized, per activity, accounting of the
hours expended, in addition to a copy of the
fee agreement between the parties and any
relevant receipts or other documentation of
prior payment.
(b) This Paragraph applies to contested cases commenced on or
after January 1, 2012.
(1) The Commission shall award the
reimbursement of legal and witnesses' fees and
costs as follows:
(A) Attorney fees incurred in connection
with the contested case proceeding
before the Office of Administrative
Hearings (OAH) and with any
successful appeal of an OAH decision
in the General Courts of Justice at a
reasonable hourly rate based on the
prevailing market rate but at a rate no
higher than the fee agreement
between the parties;
(B) Law Clerk, Paralegal, or Legal
Assistant fees at a reasonable hourly
rate based on the prevailing market
rate but at a rate no higher than the
fee agreement between the parties;
(C) Travel time at a maximum rate of
one-half the applicable hourly
attorney or legal support staff fee
rate; or
(D) Costs at the actual cost.
(2) Fees shall not be awarded unless requested by
an attorney or the Petitioner and documented
by an itemized, per activity, accounting of the
hours expended, in addition to a copy of the
fee agreement between the parties and any
relevant receipts or other documentation of
prior payment.
(3) An agency and a petitioner may jointly submit
a request to the State Personnel Commission to
award attorney's fees, witnesses' fees, and
costs in a case where a case arising under
Chapter 126 has been settled either at the
agency level prior to a contested case hearing
in OAH or resolved at the agency level, the
assessment of reasonable attorneys' fees and
witnesses' fees against the State agency
involved.
Authority G.S. 126-4(11).
* * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Personnel Commission intends to amend the rules cited
as 25 NCAC 01D .0303, .0308, .0605, .0611, .0808 and repeal
the rules cited as 25 NCAC 01D .0107, .0403, .1205; 01E .0102.
Link to agency website pursuant to G.S. 150B-19.1(c):
http://www.osp.state.us/rtable.comm/spc.htm
Proposed Effective Date: June 1, 2012
Public Hearing:
Date: March 19, 2012
Time: 10:00 a.m.
Location: Third Floor Conference Room, Administration
Building, 116 West Jones Street, Raleigh, NC 27603
Reason for Proposed Action:
25 NCAC 01D .0107, .0403, .1205 – These rules are being
repealed because they are unnecessary.
25 NCAC 01D .0303, .0308, .0605 – These rules are proposed
to be amended in order to reflect the processes that have
changed in State government as a result of the implementation of
electronic processing of personnel actions.
25 NCAC 01D .0611, .0808 – These rules are proposed to be
amended in order to reflect the deletion of the reference to the
hiring rate. A "hiring rate" no longer exists on the State salary
schedule.
25 NCAC 01E .0102 – This rule is unnecessary and repetitive.
Procedure by which a person can object to the agency on a
proposed rule: A public hearing will be held on March 19,
2012 at 10:00 a.m. The hearing will be held in the third floor
conference room, Administration Building, 116 West Jones
Street, Raleigh, NC. The purpose of the hearing is to receive
oral and written comments/objections regarding the proposed
action of the following rules: 25 NCAC 01D .0107, .0403,
.1205, .0303, .0308, .0605, .0611, .0808; and 01E .0102.
Written comments/objections not submitted during the public
hearing should be sent to: Ms. Shari G. Howard, Human
Resources Partner, Office of State Personnel, 1331 Mail Service
Center, Raleigh, NC 27699-1331. The public comment period
will end on March 19, 2012.
Comments may be submitted to: Ms. Shari G. Howard, Office
of State Personnel, 1331 Mail Service Center, Raleigh, NC
27699-1331; phone (919) 807-4800; fax (919) 733-0653; email
shari.g.howard@osp.nc.gov
Comment period ends: March 19, 2012
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission after the adoption of the Rule. If the
Rules Review Commission receives written and signed
objections after the adoption of the Rule in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1024
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-431-3000.
Fiscal impact (check all that apply).
State funds affected
Environmental permitting of DOT affected
Analysis submitted to Board of Transportation
Local funds affected
Date submitted to OSBM:
Substantial economic impact (≥$500,000)
Approved by OSBM
No fiscal note required
CHAPTER 01 - OFFICE OF STATE PERSONNEL
SUBCHAPTER 01D - COMPENSATION
SECTION .0100 - ADMINISTRATION OF THE PAY
PLAN
25 NCAC 01D .0107 CROSS HIRING
It is necessary that the practice of cross hiring in state
government be carefully controlled. Such arrangements must
take into consideration such factors as the character of the
services to be performed, the effect on the morale of other state
employees, the ethical considerations involved, the temporary
loss of the services of the individual to the parent agency, the
possible reduced efficiency of the individual as a result of
fatigue or inattention to primary responsibilities, the urgency of
the situation, possible alternative arrangements and other
pertinent factors.
Authority G.S. 126-4.
SECTION .0300 - PROMOTION
25 NCAC 01D .0303 EFFECTIVE DATE
(a) Permanent promotions shall be made effective on the first
day of the pay period. Such requests cannot be made effective
earlier than the first day of the following month when received
after the tenth of the month.
(a)(b) The required A promotional increase shall be given on the
effective date of the a promotion, unless a specific salary
limitation is published in advance.
(b)(c) If the desired amount of increase is not given on the
effective date of the promotion, an additional increase(s), up to
the full allowable amount, may be given at a later date(s) on a
current basis. Additional increases are limited to two
occurrences after the initial promotional increase and must be
awarded within 24 months of the original effective date of the
action. If a subsequent promotion, reallocation up or down,
demotion or reassignment occurs, this cancels the authorization
to grant additional increases as a result of the previous
promotion. If increases are to be given at later dates, a notation
must be entered on the form in the comments section on the
personnel action stating the reason the increase is being delayed
and showing the dollar amount of the allowable increase, the
amount given, and the balance that may be given later. The
personnel actions submitted later must state "Promotional
Increase" in the description of action block, which will denote
that this is a delayed increase.
(c)(d) If no additional increase is to be given at a later date, no
notation is necessary.
(d)(e) Temporary promotions may be made effective on the date
that an employee is officially placed in an "acting" capacity.
Authority G.S. 126-4.
25 NCAC 01D .0308 SALARY INCREASES
The purpose of a promotional pay increase is to reward the
employee for the assumption of duties more responsible and
more difficult than those in the current position. Subject to the
availability of funds, salary increases, not to exceed the
maximum of the range, may be given in accordance with the
following:
(1) Permanent Promotion:
(a) Salaries at the hiring rate shall be
increased to the new hiring rate.
(a)(b) Salaries at the minimum rate or
within the range shall be increased to
the new minimum rate of the grade to
which promoted or by five percent,
whichever is larger. Exceptions:
(i) A promotional increase is
not required if a specific
salary rate or limitation is
published in advance of a
promotional offer because of
internal salary equity or
budget considerations in the
receiving work unit or
agency. If this occurs, a
salary increase above the
salary rate posted may not be
paid. If conditions change
that eliminate the equity
problem or if additional
funds become available that
can be used for this purpose,
agency management may
consider an additional
increase in accordance with
the provisions outlined under
Rule .0303 of this Section.
(ii) If the employee's salary is
above the maximum as a
result of a reallocation down,
no increase can be given, but
the salary may remain above
the maximum.
(b)(c) If the employee is promoted to a
position within the same class series
or occupational group:
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1025
(i) the salary may be increased
by up to five percent for
each grade provided by the
promotion, or
(ii) the salary may be
established in accordance
with the rules at 25 NCAC
01D .0200, New
Appointments.
(c)(d) If the employee is promoted to a
position in a different occupational
area, the salary may be established in
accordance with the rules at 25
NCAC 01D .0200, New
Appointments. The nature and
magnitude of the change in jobs, the
need to maintain equity of salaries
within the work unit, and other
management needs must be given
consideration when making salary
decisions. Agency management is
responsible for assuring that
inequities are not created. When
establishing salaries in accordance
with 25 NCAC 01D .0200, the
personnel action forms the comments
section of the personnel action must
include the justification for the salary
decision. If an employee has been
reduced to a lower salary grade
through demotion, reassignment,
reallocation or salary range revision,
but without a corresponding reduction
in salary, and the employee is later
promoted to a position with a higher
grade, the number of grades in the
original reduction shall be considered
to have been compensated and shall
not be considered in the salary setting
procedure in this Rule. If the
reduction in grade occurred as much
as 12 months previously, the agency
may give consideration to granting a
salary increase within the provisions
of this policy. Factors to be
considered are the nature of the
change in jobs and the need to
maintain equity of salaries within the
work unit.
(d)(e) Only with the prior approval of the
State Personnel Director and only in
well-documented cases which involve
circumstances such as severe labor
market conditions, unusual change in
the scope of work, extraordinary
qualifications, or resolution of serious
equity problems will salary increases
above that allowed by the provisions
in this Sub-item be considered.
Personnel forms The comments
section on the personnel action must
include the justification.
(e)(f) If the employee is to receive a
performance salary increase on the
same date as the promotion, the
increase may be given before the
promotional increase.
(f)(g) If an employee is promoted from a
class for which there is no special
entry rate into a class which has a
special entry rate, the employee's
salary may be increased by the
amount of the promotional increase
plus the percent difference between
the minimum and the special entry
rate authorization.
(2) Temporary Promotion:
(a) Temporary promotions may be made
when an employee is placed in an
"acting" capacity for a period of time.
When an employee is placed in an
"acting" capacity, at the discretion of
management, one of the following
may occur:
(i) The employee may be
placed in the higher level
position (if vacant) with an
understanding that he will
return to the former position
and salary when the position
is filled.
(ii) A salary adjustment may be
given in the present position
with the understanding that
the salary will be decreased
when the "acting" capacity
terminates. Indicate in
Section 21 of the PD-105
The comments section of the
personnel action must
include the position number
and classification for which
the employee is serving in an
as "acting" capacity. Also
include and the expected
duration of "acting"
capacity.
(b) The provisions for salary increases
for permanent promotions apply in
either case, except that the provision
for a mandatory increase may not be
applicable.
(c) The length of time that an employee
is in an acting capacity should be
limited, and the amount of
promotional salary increase
determined by the degree of
assumption of the higher level duties.
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1026
Authority G.S. 126-4.
SECTION .0400 - DEMOTION OR REASSIGNMENT
25 NCAC 01D .0403 EFFECTIVE DATE
Demotions or reassignments shall be made effective on the first
day of the pay period.
Authority G.S. 126-4.
SECTION .0600 - REALLOCATION
25 NCAC 01D .0605 EFFECTIVE DATE
(a) Reallocations shall be made effective on the first day of the
pay period. Forms PD-118 A request to reallocate a position
should be submitted to the Office of State Personnel 30 days
prior to the proposed effective date to allow adequate time for
study and processing of the requests. Requests received after the
first day of the month are subject to be made effective no earlier
than the first of the following month and requests can be
effective only after complete information is available to make a
decision. If any party is delayed in carrying out its
responsibilities, the employee should not be caused to suffer
delay and the effective date will be revised to the most
reasonable date consistent with the time that complete
information would have been available to make the decision on
reallocation of the position.
(b) Salary increases to the minimum rate (or hiring, if
applicable) shall be given on the effective date of the
reallocation. If funds are not available, the increase shall be
given from the first available funds and made retroactive to the
effective date of the reallocation. reallocation, so long as a
notation is entered on the comments section of the personnel
action at the time the reallocation occurs. Employees who are
denied increases because of poor performance may receive the
increase on a current basis if/when the performance becomes
satisfactory. issue is resolved and a notation should be entered
on the comments section of the personnel action at the time of
the reallocation indicating that a review of performance will take
place on or before a specific date in the future.
(c) Salary increases within the range are optional and, if
recommended, should be given on the effective date of the
reallocation. If the desired amount of increase is not given on the
effective date because of unavailable funds, equity
considerations or performance, the increase(s), up to the full
allowable amount, may be given at a later date(s) on a current
basis. basis, so long as the required notation is entered on the
comments section of the personnel action at the time of the
reallocation. Total increases are limited to three occurrences and
must be awarded within 24 months of the original effective date
of the action. If a subsequent promotion, reallocation up or
down, demotion or reassignment occurs, this cancels the
authorization to grant additional increases as a result of the
previous reallocation.
(d) If increases are to be given at later dates, a notation must be
entered on the form in the comments section of the personnel
action stating the reason the increase is being delayed and
showing the dollar amount of the allowable increase, the amount
given, and the balance that may be given later. The personnel
actions submitted later must state "Reallocation Increase" in the
description of action block, which will denote that this is a
delayed salary increase. If no increase is to be given at a later
date, no notation is necessary. necessary at the time of the
reallocation.
Authority G.S. 126-4.
25 NCAC 01D .0611 REALLOCATION/SALARY
RATE
(a) When an employee's position is assigned to a higher grade as
a result of reallocation, subject to the availability of funds and
satisfactory employee performance, salary increases, not to
exceed the maximum of the range, may be given in accordance
with the following:
(1) Salaries at the hiring rate shall be increased to
the new hiring rate.
(1)(2) Salaries at the minimum rate shall be increased
to the minimum rate of the new range, and
may be increased further in accordance with
Paragraph (3) of this Rule.
(2)(3) If it is determined that a salary increase is
justified, with the exception of Paragraph (b)
of this Rule, the salary shall be established as
follows:
(A) in accordance with the rules for New
Appointments (See 25 NCAC 01D
.0200), or
(B) up to five percent for each grade
provided by the reallocation, if
reallocated to a position within the
same classification series or
occupational group.
The amount of increase shall be determined consistent with the
employee's related training and experience and the nature and
magnitude of the change in jobs, and take into consideration
prior performance increases, work unit equity, and any other
salary related considerations. When establishing salaries in
accordance with the New Appointment Rules (See 25 NCAC
01D .0200), the personnel action forms must include the
justification for the salary decision.
(b) If an employee has been reduced to a lower salary grade
through demotion, reassignment, reallocation or salary range
revision, but without a corresponding reduction in salary, and
within 12 months of the reduction the employee is reallocated:
(1) The employee shall not be entitled to a
reallocation increase unless the reallocation is
to a grade higher than the grade held prior to
the reduction.
(2) If reallocated to a higher grade, the number of
grades in the original reduction shall be
considered to have been compensated and
shall not be considered in setting the salary
pursuant to Part (a)(3)(B) of this Rule.
(Example: If an employee is demoted with no change in salary
and reallocated back to the same level, the salary shall remain
unchanged and treated as if the demotion had not occurred; or if
reallocated back to a level higher than before the demotion, the
difference in the grade before the demotion and the new higher
PROPOSED RULES
26:14 NORTH CAROLINA REGISTER JANUARY 17, 2012
1027
grade will be the basis for determining the reallocation increase.)
Agency management is responsible for assuring that inequities
are not created.
(c) Only with the prior approval of the State Personnel Director
and in circumstances relating to critical positions and
well-documented labor market conditions will salary increases
be considered which equate to more than five percent for each
grade provided by the reallocation. Personnel forms must
include the justification.
(d) If the employee is to receive a performance salary increase
on the same day as the reallocation, the performance increase
shall be given before a reallocation increase is considered.
(e) When an employee's position is assigned to a lower grade,
one of the following options will be implemented:
(1) When reduction in level of the position results
from management's removal of duties and
responsibilities from the employee because of
change in demonstrated motivation, capability,
acceptance of responsibility, or lack of
performance, the effect is the same as a
demotion and the salary must be reduced at
least to the maximum as required by the policy
on demotion.
(2) When reduction in level of the position results
from position redesign because of
management decisions on program changes,
reorganization, or other management needs not
associated with the employee's demonstrated
motivation, capability, acceptance of
responsibility or lack of performance, the
salary of the employee may remain above the
new maximum as long as the employee
remains in the same classification or is
promoted to a higher level position. No
further increases, other than legislative
increases, may be granted as long as the salary
remains above the maximum.
(3) When reduction in level of the position results
from a change in the labor market or some
other reason not related to change in the duties
and responsibilities of the position, though the
position must be reallocated to the approved
classification and grade, management may
elect to maintain the employee's current
classification and grade by working the
employee against the lower level position, so
long as the employee continues to occupy the
same position or is in the same classification.
(4) Once the position is vacated, it shall be filled
at the lower level.
(f) It is a management responsibility to avoid creation of salary
inequities among employees. Each case must be evaluated to
determine which of the salary administration alternatives is most
appropriate, based on the circumstances as documented to the
Office of State Personnel, on appropriate forms, by the
employing agency.
(g) When an employee's position is assigned to the same grade
level, the employee's salary shall remain unchanged.
Authority G.S. 126-4.
SECTION .0800 - INITIAL CLASSIFICATION
25 NCAC 01D .0808 SALARY RATE
(a) If the employee is given probationary status and the salary is
below the hiring minimum rate for the range assigned, it shall be
adjusted to the new hiring minimum rate. If the employee is
given a permanent or time-limited permanent appointment and
the salary is below the minimum rate, it shall be adjusted to the
minimum rate of the range assigned.
(b) If the employee's salary falls within the range assigned to the
position, it shall remain unchanged.
Authority G.S. 126-4.
SECTION .1200 - LONGEVITY PAY
25 NCAC 01D .1205 AGENCY RESPONSIBILITY
Each state agency head shall be responsible for determining the
quantity of qualifying service of each employee of that agency.
When an employee is eligible for longevity pay, the agency head
shall submit Form PD 135 for payment and certify the length of
qualifying service to the Office of State Personnel.
Authority G.S. 126-4.
SUBCHAPTER 01E - EMPLOYEE BENEFITS
SECTION .0100 - LEAVE: GENERAL PROVISIONS
25 NCAC 01E .0102 TYPES OF LEAVE
Various types of leave recognized by the State Personnel
Commission are set up in Sections .0200 to .1600 of this
Subchapter. They are: vacation leave, sick leave, workers'
compensation leave, military leave, holidays, miscellaneous
leave, voluntary shared leave, family and medical leave,
community service leave, and leave without pay.
Authority G.S. 126-4; 126-8.
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Note from the Codifier: The rules published in this Section of the NC Register are temporary rules reviewed and approved by the
Rules Review Commission (RRC) and have been delivered to the Codifier of Rules for entry into the North Carolina Administrative
Code. A temporary rule expires on the 270th day from publication in the Register unless the agency submits the permanent rule to the
Rules Review Commission by the 270th day.
This section of the Register may also include, from time to time, a listing of temporary rules that have expired. See G.S. 150B-21.1
and 26 NCAC 02C .0500 for adoption and filing requirements.
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Rule-making Agency: Department of Health and Human
Services/Division of Health Service Regulation
Rule Citation: 10A NCAC 14D .0101-.0102, .0201-.0219,
.0301-.0303, .0401-.0402, .0501-.0502, .0601-.0603, .0701,
.0801
Effective Date: January 1, 2012
Date Approved by the Rules Review Commission: December
15, 2011
Reason for Action: The Department of Health and Human
Services was directed to pilot an overnight respite program in
facilities that offer adult day care by Senate Bill 512 in Session
Law 2011-104. These temporary rules are being proposed in
response to this act by the General Assembly with the
establishment of a new Subchapter entitled "Overnight Respite
in Certified Adult Day Care Programs."
CHAPTER 14 – DIRECTOR, DIVISION OF HEALTH
SERVICE REGULATION
SUBCHAPTER 14D - OVERNIGHT RESPITE IN
CERTIFIED ADULT DAY CARE PROGRAMS
SECTION .0100 – SCOPE AND DEFINITIONS
10A NCAC 14D .0101 SCOPE
This Subchapter sets forth rules for certified adult day care
programs offering overnight respite services pursuant to S.L.
2011-104.
History Note: Authority S.L. 2011-104;
Temporary Adoption Eff. January 1, 2012.
10A NCAC 14D .0102 DEFINITIONS
The following definitions apply throughout this section
Subchapter:
(1) "Adult day care program" means a facility
certified by the Department of Health and
Human Services, Division of Aging and Adult
Services pursuant to G.S. 131D-6.
(2) "Overnight respite services" means services
that consist of 24-hour supervision and
personal care services provided for persons on
a temporary basis for caregiver relief, not to
exceed 14 consecutive days or no more than
60 total calendar days in a 365-day period and
is provided by an adult day care program.
(3) "Personal care" means tasks such as assistance
with personal hygiene and grooming, feeding,
ambulation and other health care needs.
(4) "Resident" means the recipient of the
overnight respite services.
(5) "Supervision" means visual monitoring of
residents to determine the need for assistance.
History Note: Authority S.L. 2011-104;
Temporary Adoption Eff. January 1, 2012.
SECTION .0200 – PHYSICAL PLANT RULES
10A NCAC 14D .0201 SUBMISSION OF
INFORMATION TO THE DIVISION OF HEALTH
SERVICE REGULATION CONSTRUCTION SECTION
(a) Prior to operation, an applicant for overnight respite services
shall submit the following forms and reports to the Division of
Health Service Regulation (DHSR) Construction Section:
(1) an approval letter from the local zoning
jurisdiction for the proposed location;
(2) a photograph of each side of the existing
structure and at least one of each of the interior
spaces if an existing structure; and
(3) a set of blueprints of each level indicating the
layout of all rooms, room dimensions
(including closets), door widths (exterior,
bedroom, bathroom and kitchen doors),
window sizes and window sill heights, type of
construction, the proposed resident bedroom
locations including the number of occupants in
each bedroom.
(b) The Construction Section shall review the information and
notify the applicant in letter of required changes that must be
made to the building to meet the rules of this Section along with
the North Carolina State Building Code. The letter shall also
contain a list of final documentation required from the local
jurisdiction that must be submitted upon completion of any
required changes to the building or completion of construction.
(c) Any changes made during construction that were not
proposed during the initial review shall require the approval of
the Construction Section to assure physical plant rule
requirements are met.
(d) Upon receipt of the required final documentation from the
local jurisdiction, the Construction Section shall review the
information and may either make an on-site visit or approve the
overnight respite services for construction by documentation. If
all items are met, the Construction Section shall notify the
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DHSR Adult Care Licensure Section of its recommendation for
approval.
(e) Following review of the application, references, all forms
and the Construction Section's recommendation for use, a pre-approval
visit shall be made by a consultant of the DHSR Adult
Care Licensure Section. The consultant shall report findings and
recommendations to the Adult Care Licensure Section which
shall notify, in writing, the Division of Aging and Adult Services
and the applicant of the decision to approve or deny overnight
respite services as a part of the adult day care program that is
planning to provide the services.
History Note: Authority S.L. 2011-104;
Temporary Adoption Eff. January 1, 2012.
10A NCAC 14D .0202 CAPACITY
(a) The capacity of the overnight respite services shall not be
approved for more than six residents. The Department shall not
approve a capacity for an overnight respite service of more than
six residents.
(b) The total number of residents shall not exceed the capacity
approved by the Construction Section.
(c) A request for an increase in capacity by adding rooms,
remodeling or without any building modifications shall be
submitted to the Construction Section, accompanied by two
copies of blueprints or floor plans. One of the plans shall show
the existing building with the current use of rooms and the
second plan shall indicate the addition, remodeling or change in
use of spaces showing the use of each room. If new construction,
plans shall show how the addition will be tied into the existing
building and all proposed changes in the structure.
(d) When the overnight respite services program increases its
designed capacity by the addition to or remodeling of the
existing physical plant, the entire program shall meet all current
fire safety regulations.
History Note: Authority S.L. 2011-104;
Temporary Adoption Eff. January 1, 2012.
10A NCAC 14D .0203 DESIGN AND CONSTRUCTION
(a) Any adult day care program intending to provide overnight
respite services for the first time shall meet the applicable
requirements of the North Carolina State Building Code. All
new